Divorce, parental responsibility and the best interests of the child: HSC Legal Studies

What this dot point is asking

Part 2 of the Family option in the Legal Studies Stage 6 Syllabus (2009) is responses to problems in family relationships: divorce, the legal consequences of separation (children and property), dealing with domestic violence, and the roles of courts and dispute resolution methods, non-government organisations and the media. The "learn to" statements ask you to outline the legal processes involved in dealing with problems in family relationships, examine the role of non-government organisations and the media and evaluate the effectiveness of the law in achieving justice for parties involved in relationship breakdowns.

This page also covers the contemporary issue the changing nature of parental responsibility, because the 2006 and 2023 parenting reforms are the best evidence for it. Domestic violence has its own page.

The law changed twice recently, so older notes are wrong on key points:

• the Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024 (parenting);
• the Family Law Amendment Act 2024 (Cth) property changes commenced on 10 June 2025.

The answer

Divorce

The Family Law Act 1975 (Cth) replaced the fault-based Matrimonial Causes Act 1959 (Cth) with no-fault divorce.

• Ground. The only ground is irretrievable breakdown, established by the parties having separated and lived separately and apart for at least 12 months (s 48). Divorce is refused if there is a reasonable likelihood of reconciliation.
• Separation under one roof. Parties can be separated while living in the same home, with evidence such as affidavits showing the relationship ended (s 49(2)).
• Short marriages. Until 10 June 2025, parties married for less than 2 years had to attend counselling about reconciliation or obtain the court's leave (s 44(1B)). The Family Law Amendment Act 2024 (Cth) repealed that requirement, so the same 12-month separation rule now applies to every marriage.
• Application. One party or both jointly apply to the Federal Circuit and Family Court of Australia (FCFCoA) Division 2.
• Children. The court must be satisfied proper arrangements have been made for children under 18 (s 55A).
• Effect. The order takes effect one month after it is made (s 55), after which the parties may remarry.
• Time limits. Property and spousal maintenance applications must be made within 12 months of the divorce order taking effect (s 44(3)), or with leave.

Divorce itself rarely causes disputes. Conflict arises over children and property. In 2025, 49,158 divorces were granted, up 4.1%, and the median time from marriage to divorce was 13.4 years (ABS).

The changing nature of parental responsibility

Parental responsibility means all the duties, powers, responsibilities and authority parents have by law in relation to children (s 61B). Each parent has it until the child turns 18, unless a court orders otherwise (s 61C). The concept has changed dramatically:

The 2006 regime. The presumption did not apply where there were reasonable grounds to believe a parent had engaged in family violence or child abuse. In MRR v GR (2010) 240 CLR 461 the High Court held that a court must actually consider whether equal time is reasonably practicable before ordering it. In practice many parents and some professionals treated the presumption as a right to 50/50 time. ALRC Report No 135, Family Law for the Future (2019), found the provisions were confusing and could pressure victims of family violence into unsafe arrangements, and recommended their repeal.

The 2024 regime. The Family Law Amendment Act 2023 (Cth), in force from 6 May 2024:

• repealed the presumption of equal shared parental responsibility (s 61DA) and the equal-time consideration (s 65DAA);
• lets courts allocate joint or sole decision-making about major long-term issues (such as education, religion and health) according to the child's best interests;
• replaced the long list of "primary" and "additional" considerations in s 60CC with six general factors (s 60CC(2)):
  1. arrangements that promote the safety of the child and each person caring for the child (including safety from family violence, abuse and neglect);
  2. any views expressed by the child;
  3. the child's developmental, psychological, emotional and cultural needs;
  4. the capacity of each proposed carer to meet those needs;
  5. the benefit of the child having a relationship with their parents and other significant people, where it is safe;
  6. anything else relevant.
• requires the court, in considering safety, to consider any history of family violence, abuse or neglect and any family violence orders (s 60CC(2A));
• adds a separate factor for Aboriginal and Torres Strait Islander children: their right to enjoy their culture, including connection with family, community, culture, country and language (s 60CC(3));
• codified Rice and Asplund (1979): final parenting orders can only be reconsidered if there has been a significant change of circumstances and reconsideration is in the child's best interests (s 65DAAA);
• requires an independent children's lawyer to meet the child and give them a chance to express views, unless the child is under 5, does not want to, or exceptional circumstances apply (s 68LA);
• lets courts make harmful proceedings orders to stop a party filing further applications without leave, protecting children and victims from litigation abuse.

Parenting orders in practice. Most parents make their own arrangements, recorded in a parenting plan (not enforceable) or consent orders (enforceable). Orders set out who the child lives with, spends time with and communicates with, and how decisions are made. Contravening an order without reasonable excuse can lead to make-up time, bonds, fines or imprisonment (Part VII Division 13A).

The child's views. In Bondelmonte v Bondelmonte (2017) 259 CLR 662 a father kept his two teenage sons in New York in breach of parenting orders. The High Court upheld interim orders for their return to Australia: the boys' wish to stay was considered but given limited weight because their views had been influenced by the father's conduct. The case shows that a child's views are one factor, not decisive, in determining best interests.

Property

Legal framework. Married couples: s 79. De facto couples: s 90SM (outside WA). The Family Law Amendment Act 2024 (Cth), from 10 June 2025, wrote the court's approach into the Act:

1. Identify each party's existing legal and equitable rights and interests in property, and their liabilities. Superannuation can be split (Family Law Legislation Amendment (Superannuation) Act 2001 (Cth), from 2002).
2. Contributions. Financial and non-financial contributions, including contributions as homemaker and parent. The court must now consider the effect of family violence on a party's ability to contribute, codifying Kennon & Kennon (1997).
3. Current and future circumstances. Age, health, income, earning capacity and care of children, plus new factors: the economic effects of family violence, the housing needs of children under 18, wastage of property and the nature of liabilities.
4. Just and equitable. The order must be just and equitable. The High Court in Stanford v Stanford (2012) 247 CLR 108 held that the court must first be satisfied it is just and equitable to make any order at all; there is no presumption that property is divided or that it is owned equally.

The 2024 Act also created a separate category for companion animals: the court may order one party to keep the pet, or its transfer or sale, considering matters such as attachment and any history of cruelty, but cannot order shared ownership or care. It also expanded the definition of family violence (s 4AB) with stand-alone examples of economic and financial abuse, including dowry abuse, and codified the duty of disclosure.

Spousal maintenance. A party must support the other if they are unable to support themselves adequately and the other can afford it (s 72; s 90SF for de facto couples). Family violence is now a relevant factor.

Child support. Assessed administratively by Services Australia using a formula based on both parents' incomes and the percentage of care (Child Support (Assessment) Act 1989 (Cth)).

Courts and dispute resolution methods

Family dispute resolution (FDR)

Before filing for parenting orders, parties must obtain a s 60I certificate from an accredited FDR practitioner showing a genuine attempt to resolve the dispute, unless there is family violence, child abuse, urgency or incapacity. Providers include the Family Relationship Centres (established from 2006), Legal Aid NSW (family dispute resolution conferences) and private mediators. Parties must also follow pre-action procedures in property cases, and can use arbitration for property disputes.

The FCFCoA

Division 2 is the single entry point for most cases; Division 1 hears complex cases and appeals. The court screens cases for family violence risk and uses the Evatt List for high-risk family violence cases. Only a small proportion of cases proceed to a final hearing.

Evaluation of courts and ADR

• Strengths: FDR is cheap, fast, private and cooperative; agreements made by the parties are more likely to be followed; the court is specialised and now screens for risk.
• Weaknesses: FDR is inappropriate where there is a power imbalance or violence; court delays can last years; legal costs are high and legal aid is limited, so many parties are self-represented.

Non-government organisations and the media

NGOs deliver services and push for reform:

• Relationships Australia and other providers run FDR, counselling and Family Relationship Centres;
• Women's Legal Services Australia and other women's safety groups argued for removing the equal shared responsibility presumption;
• shared parenting and fathers' groups argued against the 2023 reform, saying it would reduce children's time with fathers.

The media raises awareness and applies pressure. Coverage of family violence homicides, including children killed by a parent after separation, fuelled inquiries such as the 2019 Joint Select Committee on Australia's Family Law System and ALRC Report No 135. The media can also misreport family law, for example presenting the 2006 reforms as "50/50 custody", which contributed to the misunderstanding the 2023 Act corrected.

Evaluating justice in relationship breakdowns

Judgement. The law achieves justice for most separating families: divorce is simple and blame-free, and the 2024 and 2025 reforms put children's safety first and recognise the economic harm of violence. Justice is weakest where it matters most, for victims of violence and parties without resources, because of cost, delay and the difficulty of proving abuse.

In one sentence

Divorce is no-fault after 12 months' separation, parenting disputes are decided by the child's best interests with safety first since the 2024 reforms removed the equal shared responsibility presumption, property is divided by a codified just and equitable process that since June 2025 recognises family violence, and most disputes are resolved through family dispute resolution, making the law effective for most families but still limited for victims of violence and those without resources.

Try this

Q1. Outline the changes made to parenting law by the Family Law Amendment Act 2023 (Cth). (5 marks)

• What the marker wants. Repeal of s 61DA and s 65DAA, new s 60CC factors led by safety, s 60CC(3) culture, s 65DAAA, s 68LA, harmful proceedings orders, with the 6 May 2024 date.

Q2. Explain the role of the media in relation to family law. (5 marks)

• What the marker wants. Awareness and pressure for reform through reporting of family violence deaths, and misreporting of the 2006 reforms, linked to specific reforms.

Q3. Assess the effectiveness of courts and dispute resolution methods in resolving family disputes. (8 marks)

• What the marker wants. s 60I FDR and its exceptions, FCFCoA risk screening and the Evatt List, cost and delay, and a judgement.