What’s changed? The First Published Parenting Case under the new Family Law Amendments

The first published decision under the new Family Law Amendments which came into effect on 6 May 2024 has been released. Judge Glass of Division 2 of the Federal Circuit and Family Court in Melbourne had the honour of publishing the first decision under the amendments in the case of Shams v Alkaios (No 2) [2024].

This case concerned the question of whether 11 and 8 year old boys should live with their father in Victoria or their mother in Queensland.

Facts of the case

In this case, the Father lived with the children in Melbourne, and the Mother had relocated to Queensland with her new partner. The parties separated in late 2016 to early 2017, and then the children spent approximately equal time until December 2017, when equal time began as agreed between the Father and the Mother.

In January 2023, the Mother decided on her own to relocate to Queensland with the children. Interim Orders were then made the next month for the children to return to Melbourne, and equal time to resume if the Mother moved back to Melbourne, which she did not do. While the children did see the Mother, the Mother remained in Queensland and did not relocate to Melbourne.

The parties got a report from a Family Consultant, and in that report, the children mentioned that among other things, they preferred to live in Melbourne as they wanted to continue to go to the school in Melbourne where their best friends were.

The decision

The Judge discussed, primarily, the inconsistencies of the Mother’s unspecific allegations of her concerns of the children in the Father’s care with the care arrangements which appeared to be consented to, and other inconsistencies in evidence. The Judge also deferred to the report of the Family Consultant and the children’s views about preferring to stay in Melbourne over Queensland in that report in assisting his determination of the Father not posing any unacceptable risk to the children that would justify uprooting the children and moving to Queensland.

The written judgment itself does not provide particular comment on the effect of the differences on this case and how it would have been heard before the amendments, so it is doubtful whether the amendments themselves would have changed the outcome of this case in particular.

However, the methodical way in which the 6 considerations were applied may be indicative of a cautious approach by the Court in making any leaps or assumptions in interpreting the new considerations. Judge Glass’ job was made a bit easier as he had already determined that the allegations of risk made by the Mother were unsubstantiated and inconsistent with evidence.

So, the amendments so far, at least in this relatively simple relocation case, appear to be focused on wording and framing. Of particular note is the change of the wording of the Order for ‘equal shared parental responsibility’ (ESPR) to instead read ‘joint decisions in relation to all major long-term issues’. The intention of this, it would seem, is to make clear that these kinds of Orders are in relation to long-term decisions, which is what ESPR has always intended to be referred to.

Perhaps future cases will embark on more discussion on if this change is just in wording or if the wording actually has different meaning, in cases where there are disputes about education, medical, or religious long-term decisions to make with respect to children. The Court had and continues to have the power to split decision-making power, eg. allowing one parent to be in charge of decisions about education, or medical procedures or particular medical procedure. Whether there is a greater frequency of these kinds of decisions as a result of the wording change is yet to be seen.

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