Melissa Buchanan
Principal / Director

Welcome to 2024 and the first in the Reign Legal Family Law series articles.

To kick start the year we look to explore the incoming changes to the Family Law Act 1975 in May 2024 focusing on the popular topic of the current presumption of Equal Shared Parental Responsibility (ESPR).

 

 

The Family Law Amendment Bill amongst a number of other family law reforms includes the replacement of Equal Shared Parental Responsibility (ESPR) with a presumption of ‘joint decision making about major long-term issues’.

Understandably, when the words ‘repeal’ or ‘replace’ are heard seen by the community when talking about important matters such as families, parenting and children it can cause a level of angst and worry in the community and in particular to those who are currently in family law proceedings.

From our desk, whilst May 2024 is some months away it is interesting to note that historically ESPR has not always been part of the Family Law Act and was an amendment made to the Family Law Act in as recent as 2006. The 2006 amendment sought to, amongst a number of benefits, have separated parents engage as co-parents in the life of their child.

Currently, ESPR is seen as what some might refer to as a ‘starting gun position’ for parenting cases and for some parties this is seen as an entitlement or a perceived ‘right’ to ESPR – the reality remains that under our Family Law Act parents in parenting cases do not have ‘rights’ at all, parents have responsibilities and obligations arising as a result of the Family Law Act.

The repeal of ESPR seeks to further solidify the concept of primary considerations under the Family Law Act; ‘best interests of a child’ in parenting matters and in particular, in circumstances of family violence. The Law Council of Australia presented at the time of formulating the amendments to ESPR that ‘The presumption of ESPR has caused confusion, conflict and unfounded expectations, resulting in danger for victim-survivors of domestic and family violence (both adults and children) and additional burdens for vulnerable parties in having to persuade the court to displace the presumption because of family violence.’

The changes from our perspective attempt to squarely focus on the best interest of the child rather than parents and presumptions about parents or indeed any confusion as to perceived parenting rights. The amendments additional to the replacement of ESPR include a strong promotion of safety of a child including safety from family violence, abuse neglect or other harm which now includes a simplification and solidification of the s 60CC factors those including:

  • Views expressed by a child;
  • Developmental needs of children (Psychological, emotional and cultural needs);
  • Capacity of carers to route for the child’s developmental psychological, emotional and cultural need;
  • Benefit of being able to have relationships with their parents and other people who are significant in the life of the children;
  • Anything else that is relevant;
  • For Aboriginal and Torres Strait Islander children, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.

Additional to the above, the amendments seek to see parents focussing on ‘joint decision making’ which focuses on parents working together (where safe to do so) shifting the focus away from the parent or perceived parenting ‘rights’ to focussing squarely on the best interest of the children and their parents engaging together to make all decisions relating to their long-term development.

Whilst the amendment to ESPR has been widely supported as prefaced above, this amendment to ESPR has caused a division of school of thought and whilst we cannot know for sure, there are some in the community which have indicated that the removal of ESPR will see a ‘step back in time’ where some parents may spend less time with their children in circumstances where allegations of family violence may be advanced unduly or in ways unsubstantiated by evidence, by some parents to attempt to reduce another parents time with a child (alienation).

In January 2024 we really are in a position whereby we will not know the full effects of this particular amendment until such time that decisions are handed down by our Court following May enactment date. It appears evident however that the starting point will no longer be ‘equal shared parental responsibility’ and that there will be a nuanced refocus on what is in the ‘best interest of the child’ and arrangements which are appropriate and child centric.

2024 will look to be an interesting year in Family Law as we experience and see the fruition of the full swathe of amendments to the Family Law Act including the application of the amendment to ESPR.