I INTRODUCTION

The regulation of family relationships following divorce interacts with a complex and intricate area of Australian law. The Family Law Act 1975 (Cth) establishes an approach for both parenting arrangements and division of property based on the paramount consideration of the best interests of the child (s 60CA) and the condition that property settlements be “just and equitable” (s 79(2)).[1] The principles embody a legislative intent to uphold fairness and cooperation, however, their execution in practice reveals profound tensions between legal principles and the realities by separating families. Thus, despite the statutory framework, parenting arrangements are influenced by factors such as the conflict, relocation, family violence and varying needs of the child. Property settlements can be confronted with uncertainty, unequal access to finance, caring work which is unpaid, superannuation and the economic repercussion of family violence. This article argues the simplistic assumption of 50/50 fairness including both parenting and property dispute law requires more contextual views, especially with the recent parenting and property settlement amendment in the Family Law Act (Cth) which commenced June 2025.

II BEST INTERESTS PRINCIPLE & SHARED RESPONSIBILITY

Parenting law today is more appropriately based on the actual child as opposed to assumptions regarding parental equality. Under s 60CA of the Family Law Act 1975 (Cth), the child’s best interests are the paramount consideration when the Court establishes a parenting order.[2] The content of that principle is developed through s 60CC, which further directs the Court to consider factors including the safety of the child and their carers the child’s views, the child’s developmental, psychological, emotional and cultural needs, each parent’s capacity to meet those needs, and the benefit of the child having a relationship and other significant people, where safe to do so.[3] This is significant since it diverts the analysis from the notion that equal parental involvement is automatically beneficial in every family. Rather, the Court should enquire on what type of arrangement will uphold the best interests of the child.

 This is a major shift from the previous system presented by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The provisions of the former s 61DA required courts to apply a presumption that equal shared parental responsibility was in the child’s best interests, meaning courts had assumed equal involvement of parents making major long-term decisions about children, unless exceptions such as family violence or abuse applied.[4] Where such presumption was applicable, the former s 65DAA required the court to consider whether equal time, or substantial and significant time, was in the best interests of the child and reasonably applied.[5] The Family Law Amendment Act 2023(Cth) eliminated these presumptions and revoked the equal-time pathway associated with it, as there was concern that the prior framework could encourage parental entitlement and dispute instead of decision-making focusing on the child.[6]

III WHAT DROVE LAW REFORM - CASES

Prior case law regarding shared parenting played a crucial role in informing judicial interpretation of the statutory framework, however it also exposed major shortcomings to justify the need to reform the law. Under the former provisions of the Family Law Act 1975 (Cth), particularly s 61DA and s 65DAA, courts were required to implement a presumption of equal shared parental responsibility and then consider equal or substantial time arrangements where appropriate.[7] Although the intent behind these provisions was to promote cooperative parenting and to ensure consistent participation of both parents in the child’s life, the practice created tensions between the legislative intent and the real-life circumstances.

In Goode & Goode [2006], it was highlighted that courts had to adhere to the statutory framework rather than solely depending on the “status quo” approach and that the assumption of equal shared parental responsibility under the former s 61DA applied even at the interim stage.[8] This was significant at the time because it highlighted that courts could not simply preserve existing arrangements without the consideration of legislative emphasis on shared parental engagement into account. The prior framework strongly emphasised shared parental responsibility even before the details had been thoroughly examined, which helps reveal why later reforms were required.

The case MRR v GR [2010] assists with the continuing principle that parenting orders must be realistic rather than ideal. In that instance, the High Court disapproved orders that effectively required the mother to remain in Mount Isa to give the child equal time with both parents.[9] According to the Court, the statutory inquiry required consideration of the “reality of the situation” which included things like the mother’s housing, employment prospects, financial position and emotional wellbeing.[10] This argument remains plausible despite the removal of the former section 65DAA, since the Court is still required by current parenting laws to make orders both practical and in the best interests of the child.

Collectively, these cases demonstrate that the former shared parenting framework, although its intent to be beneficial, operated in a way that emphasised parental participation over reality. The rigid statutory route under former ss61DA and 65DAA led the courts to shared decision-making and a consideration of equal time even where such arrangements were not viable with the circumstances of the child. The law was found to not sufficiently consider such issues as financial hardship, geographical limitations and the dynamics of family relationships as illustrated in Goode & Goode and MRR v GR. Such legal challenges exposed the constraints of framework and the necessity for law reform that is now shifted to a more flexible approach and focusing on the best interests of the child.

IV PROPERTY DIVISION

Although parenting law has been subject to powerful reform, the property division following separation has continued to be a discretionary area of Australian family law. Under s79(1) of the Family Law Act 1975 (Cth), the Court may establish orders for the settlement of property following a separation, including transferring assets or splitting superannuation.[11]Further, when making orders, the court considers financial contributions, non-financial contributions and contributions as a homemaker (s79(4)), these powers are conditional by the requirement under s 79(2) that any order is to be “just and equitable”.[12]

This requirement acts as a threshold question, namely, the Court must first decide whether it is appropriate to modify the legal and equitable interests of the parties before it can consider the issue of how property should be divided between existing parties. This principle was strongly established in Stanford v Stanford [2012], whereby the High Court emphasised that the notion under s 79(2) is independent of the determination of contributions under s 79(4), and that the courts must not assume division of property is an automatic consequence of separation.[13] Essentially, the Court needs to determine whether, in the circumstances, it is just and fair to change the legal and equitable interests of the parties as they existed before. The decision reiterated that law does not guarantee 50/50 division of assets, instead, it requires a principled and circumstantial view.

Once the threshold requirement is met, the Court will review the contributions made by the parties under s 79(4). These include factors such as financial contributions, non-financial contributions and contributions made in the capacity of homemaker or parent.[14] These highlights one of the main strengths of this legislation, since it acknowledges the aspect of homemaker/parental duties as a significant contribution to the acquisition of financial assets, being an equally important consideration as financial contributions. Nevertheless, the assessment of such contributions is discretionary and usually leads to results of uncertainty and variability of outcome.

The discretionary nature of property settlements after separation is also depicted in the decision of superannuation. The Full Court in Coghlan & Coghlan (2005) held that “superannuation interests are another species of assets”, recognising the existence of a “two pools approach” whereby superannuation is to be assessed in isolation of other property, alongside allowing the direct and indirect contributions each party has been to be properly considered.[15] This method allows the court to consider the special features of superannuation, including the long-term nature and limited accessibility. Nevertheless, this approach is not obligatory to be followed by courts in all cases but instead enables the “two pool approach” to recognise the circumstances and assist with division of property. Hence, outcomes may be greatly differentiated by the facts, supporting the general criticism that property settlements are limited to predictability despite the structured system.

V PROPERTY – FAMILY VIOLENCE

One of the greatest shortcomings of laws regarding property settlement was the matter of not explicitly recognising the impact of family violence on financial results. Although it was necessary to consider contributions made by the person under s 79(4) of the Family Law Act 1975 (Cth), the legislation did not directly explain how violence could affect the ability of a person to contribute to the relationship.[16]

Due to this gap, courts were guided by case law, such as Kennon & Kennon (1997).  In that case, the Court accepted that the family violence could be considered in the circumstance where it had a “discernible effect” on the contribution of a party, making it more difficult.[17] The party had to demonstrate that it was not only a presence of violence, but that it had a substantial impact on their contribution. As a result, most victim-survivors were unable to effectively rely on this argument. Later this concept was expanded, like in the case of Baranski & Baranski (2012), the Court recognised that violence after separation could also make the contribution of parents more challenging.[18] Despite this, the use of case law posed a challenge as interpretation of this principle would vary and held no clear direction of legislation.

VI REFORM

In 2025, this issue was effectively addressed with recent amendments to the Family Law Act 1975 (Cth). These reforms explicitly acknowledged the effect of domestic violence and economic abuse in property settlements. The courts are to now acknowledge such considerations when determining contributions and the future circumstances under clauses such as s 79(4)(ca) and s 79(5)(a).[19] This legislation now directly recognises that family violence may reflect on the financial position of a person, shifting from the previous Kennon law that was difficult to rely on. To reiterate on the principles, the effect of violence must be assessed on a party’s current and future circumstances, including the impact on future earning capacity, health and financial needs.[20]

The reforms embody these considerations in the Act, thus, providing a more just and equitable structure to property division. It is also enhanced to accept that financial results cannot be isolated of the circumstances of the relationship itself.

VII CONCLUSION

Australian family law has developed beyond the concept of 50/50 in matters after separation. In parenting matters, there has been a stronger emphasis on the best interests of the child under s 60CA of the Family Law Act 1975 (Cth), shifting away from the presumption of shared parenting. In property matters, the threshold of settlements to be “just and equitable” under s 79(2) upholds the notion that outcomes of division of assets are reflective of specific circumstances of each case rather than a fixed view.[21] Recent reforms, namely, recognising the impact of family violence and emotional abuse in property settlements aims towards a more realistic and contextual legal framework. By implementing these aspects into legislation, the law has improved to understand the economic consequences of inequality in the relationship.

Nevertheless, despite this developments, parenting and property matters are challenged. There are still practical constraints impacting parenting arrangements such as distance, conflict and financial pressure, limiting the ability of shared care in many cases. Similarly, property settlements are heavily relied on judicial discretion, resulting in possibility of inconsistent outcomes.

Ultimately, while the law aims to provide an evolved framework to assist individual circumstances, this flexibility can be limited. The challenge for Australian family law is to reflect an ongoing effort to reflect legal principle with living reality, balancing the matters to achieve just outcomes for parties involves in a separation.

VIII FOOTNOTES

[1] Family Law Act 1975 (Cth)) ss 60CA, 79(2).

[2] Ibid s 60CA.

[3] Ibid s 60CC(2); Federal Circuit and Family Court of Australia, ‘Family Law Changed from 6 May 2024’ (Web Page).

[4] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth); Family Law Act 1975 (Cth) former s 61DA.

[5] Family Law Act 1975 (Cth) former s 65DAA.

[6] Family Law Amendment Act 2023 (Cth) schedule 1; Parliament of Australia, ‘Family Law Amendment Bill 2023’.

[7] Family Law Act 1975 (Cth) s 61DA and s 65DAA.

[8] Goode & Goode [2006] FamCA 1346; Family Law Act 1975 (Cth) former s 61DA.

[9] MRR v GR [2010] HCA 4, [15].

[10] Ibid.

[11] Family Law Act 1975 (Cth) s 79(1).

[12] Ibid s 79(4), s 79(2).

[13] Stanford v Stanford [2012] HCA 52, [35]-[40].

[14] Family Law Act 1975 (Cth) s 79(4).

[15] Coghlan & Coghlan (2005) FLC 93-220.

[16] Family Law Act 1975 (Cth) s 79(4).

[17] Kennon & Kennon (1997) FLC 92-757.

[18] Baranski & Baranski [2012] FamCA.

[19] Family Law Act 1975 (Cth) ss 79(4)(ca), 79(5)(a).

[20] Ibid s 79(5)(a).

[21] Ibid ss 60CA, 79(2).