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In this episode, I discuss the judgment of Judge Glass in Shams & Alkaios (No 2), which is the first published parenting case determined on the basis of the 2023 amendments to Part VII of the Family Law Act.
Overview
As everyone who has anything to do with family law knows, the parliament passed the Family Law Amendment Act 2023 last year, which had a particular focus on Part VII of the Family Law Act 1975.
Since the first Exposure Draft of the bill was released, there has been much discussion about the effects of the amendments.
I was on the record early with a view that the amendments were, for the most part, a simplification and rewording of the same concepts, aimed at making the provisions easier to understand for self-represented litigants, rather than a massive upheaval. Whether I was right or wrong, my views will forever be freely available online to haunt me in a TEN Fireside Chat with Jacky Campbell.
The amendments took effect on 6 May 2024. That day, Judge Glass of the Federal Circuit and Family Court of Australia (Division 2) in Melbourne commenced a 3-day parenting trial.
No doubt many other judges did the same, but Judge Glass has the distinction of delivering the first published judgment applying the amended provisions.
His Honour delivered judgment in Shams & Alkaios (No 2) on 20 May 2024.
It was a fairly straightforward relocation matter where the children had been living with the father in Melbourne, and the mother sought a change of residence for the children to live with her in Queensland.
There’s nothing extraordinary about the facts of the case, but it is the first (and at the time of writing only) published decision based on the freshly amended Part VII.
So, how did Judge Glass consider and apply the new provisions?
Are there drastic impacts as a result of the new simplified objects of Part VII?
Does the absence of a presumption in favour of equal shared parental responsibility mean that sole decision-making orders will be the new normal?
Have the section 60CC best-interests considerations changed everything?
Decision-Making
The first thing one sees when looking at the judgment is order 1, which reads:
The parties make joint decisions in relation to all major long-term issues in relation of the Children…
This is the new equivalent to the old order for equal shared parental responsibility, but in language which makes it absolutely clear that the order is about decision-making, and nothing else which might have been read into the term “parental responsibility”.
Of course, absent from the judgment is any discussion of a presumption, as none exists anymore.
Decision-making is now just another aspect of the discretionary assessment of best-interests considerations.
However, in determining the allocation of decision-making (after analysis of the best-interests considerations, which I discuss below), Judge Glass referred to the “encouragement” prescribed by section 61CA, which provides:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a) to consult each other about major long-term issues in relation to the child; and
(b) in doing so, to have regard to the best interests of the child as the paramount consideration.
New s 60B – Objects of Part VII
Judge Glass noted that he was guided by the objects of Part VII, as found in section 60B, but did not otherwise refer to them.
Section 60CC Factors
The new section 60CC is much shorter and simpler than the old one.
The old language of protecting children from harm has been replaced by a focus on the safety of not only the child, but also the child’s carers.
Section 60CC(2)(a) – Arrangements which would promote the safety of the child and carers
Under this factor, Judge Glass traversed the history of the parenting arrangements, what his Honour termed as “generalised assertions” by the mother about the father in relation to abuse and controlling behaviour, allegations of physical violence, and other allegations of family violence.
His Honour also included in this part of the judgment discussion about what in this case was a lack of family violence orders.
On my reading, there was nothing novel in the discussion. It encompassed the matters which his Honour would have discussed pursuant to the old s 60CC(2)(b) and 3(j) and (k).
His Honour was ultimately not satisfied that the father had caused harm to the children, and was therefore not satisfied that a change of residence was necessary to promote their safety.
Section 60CC(2)(b) – Views expressed by the child
In the familiar way, his Honour discussed the children’s views as relayed by the family consultant.
This is unsurprising, as the wording of the new s 60CC(2)(b) is a truncated version of the old s 60CC(3)(a).
Section 60CC(2)(c) – Developmental, psychological, emotional and cultural needs of the child
Here, his Honour’s discussion turned to the family consultant’s opinions about the care provided to the children in their primary residence, and the support the children received at home and school.
His Honour also referred to the family consultant’s evidence about potential emotional distress which would be occasioned on the children by a move from their familiar environment and community to a new life in Queensland.
Section 60CC(2)(d) – capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
Judge Glass’s discussion of this factor is reflective of the discussion one would have expected in relation to the old s 60CC(3)(f).
It has the usual themes of parental capacity and insight, child-focus and support of the children’s relationships with the other parent.
Section 60CC(2)(e) – Benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so
Here, his Honour considered the nature of the children’s relationships with each of the parents and other significant adults, ultimately determining that the children had strong and sound relationships with each parent, which could be sustained despite the geographical distances between them.
Having found earlier that there was no risk to safety, the last seven words of paragraph (e), being “where it is safe to do so” had no work to do in this case.
In the absence of safety concerns, the new s 60CC(2)(d) appears to reflect the old s 60CC(2)(a) and (3)(b), (c) and (d).
Section 60CC(2)(f) – Anything else relevant to the particular circumstances of the child
This new version of the old s 60CC(3)(m) catch-all provision.
His Honour did not discuss any relevant matters.
Conclusion
No doubt, we will see more and more judgments in the coming months, which will show us how various judges in all three Court – Division 1, Division 2, and Family Court of Western Australia, are applying the new provisions.
In time, we will get further clarification from the Full Court and eventually the High Court.
Based on this first published judgment, though, it looks like we may all be able to relax a little bit about the amendments, as nothing much seems to have changed.
