Family Law – Removal of the Parenting Pathway

On 6 May 2024, certain sections of the Family Law Act 1975 (“the Family Law Act”) that govern parenting matters changed.

These changes will immediately affect all parenting cases that are currently before the Federal Circuit and Family Court of Australia (“Court”) regardless of when the parenting case was started.

The Family Law Amendment Act 2023 substantially reforms aspects of the Family Law Act that relate to how parenting matters are determined.

The major reforms include:

The removal of the presumption of equal shared parental responsibility;
The removal of the pathway for making orders about the time children spend with each of their parents;
The creation of new factors that the Court must consider when determining what is in a child’s best interests; and
Clarification of what is required of parties who want to change parenting orders once made (without the agreement of the other parent or party).

In our earlier article, “Changes to Family Law – Parenting Matters” we examined the changes that removed the presumption of equal shared parental responsibility.

In this article, we will consider the removal of the pathway for making orders about the time children spend with each of their parents.

Repeal of the Pathway

Before the recent reforms, the Family Law Act provided a “pathway” that the Court was required to consider when determining the living arrangements for a child, specifically, the time the child would spend with each of their parents.

The now-repealed section 65DAA of the Family Law Act required the Court to consider the child spending:

equal time; or
substantial and significant time

with each parent in certain circumstances.

Equal Time

If a parenting order provided that the child’s parents were to have equal shared parental responsibility for their child (noting that this presumption is now also removed), the Court was first mandated to consider whether the child spending equal time with each of the parents would be in the best interests of the child.

In making this assessment, the Court had to consider whether the child spending equal time with each of the parents was reasonably practicable.

Substantial and Significant Time

If the Court did not find it to be in a child’s best interests to spend equal time with each parent, the next step the Court was required to consider is whether the child spending substantial and significant time with each parent was in the child’s best interests, and reasonably practicable.

Substantial and significant time with a parent was taken to include:

days that fall on weekends and holidays; and
days that do not fall on weekends or holidays; and
the time the child spends with the parent allows the parent to be involved in:
the child’s daily routine; and
occasions and events that are of particular significance to the child; and
time that allows the child to be involved in occasions and events that are of special significance to the parent.

The Court was required to have regard to the reasonable practicality of a child spending equal time, or substantial and significant time with each parent, including factors such as:

how far apart the parents live from each other; and
the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
the impact that an arrangement of that kind would have on the child; and
such other matters as the court considers relevant.

All of these sections are now repealed.

Significant case law, such as Goode & Goode [2006] FamCA 1346 provided authority for this pathway, which, subsequent to the recent reforms, has been removed.

In the amended legislation, there is no pathway, no presumptions, no trigger for substantial and significant time and no definition of what substantial and significant time is. The concept of “substantial and significant” time has been abolished.

The starting point for negotiations with regards to the time a child will spend with each of their parents is now focused on safety and practicality.

These considerations will be explored in more detail in our subsequent article which looks at the creation of new factors that the Court must consider when determining what is in a child’s best interests.

Contact Us

If you are navigating post-separation parenting arrangements and would like to learn more about how the amendments to the Family Law Act may affect you, we welcome you to contact our family law team or call directly on (07) 5532 3199.