Investigate divorce, parental responsibility and the best interests of the child principle

What this dot point is asking

NESA wants you to know how divorce works, how courts decide parenting arrangements after separation, and the major recent reforms. Expect a Section IV extended response or a 7-10 mark stimulus question.

The answer

No-fault divorce

The Family Law Act 1975 (Cth) introduced no-fault divorce in Australia. The sole ground for dissolution of marriage under s 48 is irretrievable breakdown of the marriage, evidenced by the parties having lived separately and apart for at least 12 months.

Parties can be "separated under one roof" if there is sufficient evidence of separation (corroborated by an affidavit, typically from a third party).

Either party may apply, or the parties may apply jointly. Where there are children of the marriage under 18, the court must be satisfied that proper arrangements have been made for them (s 55A) before granting a divorce order.

Property settlement

Under the Family Law Act 1975 (Cth) s 79 (marriage) and s 90SM (de facto), the court applies a four-step process:

1. Identify and value the asset pool. All property of either party, individually or jointly.
2. Assess contributions. Financial (income, inheritance), non-financial (home-making, child-care), and direct and indirect contributions.
3. Assess future needs. Section 75(2) factors: age, health, income, ability to gain employment, care of children.
4. Evaluate justice and equity. The overall result must be just and equitable.

The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) (effective 2002) allowed superannuation to be split as property in family law proceedings, a significant reform for women's post-separation financial security.

Parental responsibility: the 2006 reform

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced into the Family Law Act 1975 (Cth):

• s 61DA. A presumption of equal shared parental responsibility (the rebuttable presumption that it is in the child's best interests for both parents to share major long-term decision-making).
• s 65DAA. A requirement to consider equal time, and if not, substantial and significant time.

The reform was widely criticised by family violence advocates. The Australian Law Reform Commission Report No. 135 (2019) and the 2019 Joint Select Committee on Australia's Family Law System found that the s 61DA presumption was being misread by parties and judges as a starting point of 50/50 time, contrary to the legislative text.

Parental responsibility: the 2024 reform

The Family Law Amendment Act 2023 (Cth) (in force from 6 May 2024) made significant changes:

• Removed s 61DA. The presumption of equal shared parental responsibility was repealed.
• Streamlined s 60CC. The factors the court must consider in determining the best interests of the child were reduced and reordered, with the safety of the child placed first.
• Retained s 60CA. The best interests of the child remain the paramount consideration in parenting matters.

The reform was supported by family violence and women's legal services and by ALRC Report No. 135. It was opposed by some shared-parenting advocacy groups.

The best interests of the child

Section 60CA: in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration.

Section 60CC (post-2024): factors include the safety of the child, the views of the child, the developmental, psychological, emotional and cultural needs of the child, the capacity of each proposed carer to provide for those needs, and (for Aboriginal and Torres Strait Islander children) the child's right to enjoy their culture.

The High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662 confirmed that the court has broad discretion in assessing the best interests of the child and may permit limited international travel where it is in the child's best interests.

Family violence integration

Part VII Division 11 of the Family Law Act 1975 (Cth). The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) inserted definitions of family violence and abuse and prioritised the protection of children from harm in s 60CC. Section 60CG requires the court to consider any existing family violence orders.

Dispute resolution

Section 60I of the Family Law Act 1975 (Cth) requires a genuine attempt at family dispute resolution before a parenting application can be made, except in family violence cases or where there is urgent risk. Family Relationship Centres provide subsidised mediation.