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From May 6th, 2024, the objectives of the Family Law Act 1975 (Cth) (“the Act”), insofar as they pertain to children, will be changing in order to:
- ensure that the best interests of children are met, including by ensuring their safety.
- give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
These changes mark a significant overhaul of the existing framework established in 2006, making it clear that,when deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
The Court will consider six factors to decide what parenting arrangements will be in the best interests of the child. These factors include:
- what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)
- any views expressed by the child
- the developmental, psychological, emotional and cultural needs of the child
- the capacity of each person who will have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
- the benefit to the child of having a relationship with their parents, and other people who are significant to the child (e.g., grandparents and siblings), where it is safe to do so, and
- anything else that is relevant to the particular circumstances of the child.
In considering the matters set out above, the Court must include consideration of:
- any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not or not a person has parental responsibility for the child
- any family violence order that applies or has applied to the child or a member of the child’s family.
Decisions about how much time a child spends with each parent depends on what is in the best interests of the individual child. Under the previous Family Law Act 1975 interpretation, the norm of equal shared parental responsibility (ESPR) often wrongly conferred parents an assumed right to equal time with their children. While many people believe that parents are entitled to spend equal time with their child, this has never been the case under Australian law.
Separated parents retain parental responsibility for their children. This refers to all duties, powers, responsibilities and authorities which by law parents have in relation to a child. Major long-term issues include the child’s education, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, and any other long-term issue about the care, welfare and development of the child.
From May 6th, 2024, parental responsibility can be exercised jointly or separately (unless a Court orders otherwise). If no Court orders are in place, the parents of a child who is not yet 18 are encouraged to consult each other about major long-term issues in relation to the child. Decisions about parental responsibility should be based on what is in the best interests of the child, and the particular circumstances of the case. You are not encouraged to consult with the other parent if it would not be safe for you to do so.
If a Court makes an order for “joint decision making on major long-term issues”, parties are required to consult with each other and make a genuine effort to come to a joint decision.
Potential legal disputes following the enactment are anticipated, mirroring the trends seen with previous amendments. This may arise as parents seek clarity on how the changes impact their unique family situations or attempt to modify existing orders based on the perceived advantages of the new legislation. The amendments may also introduce nuances in negotiated outcomes due to the removal of references to equal time and shared parental responsibility. This change could lead to initial increases in litigation, especially when parties can no longer rely on ESPR presumption and its consequences in negotiations.
If you would like to know more about these changes, please get in touch with our team of expert family law lawyers who can assist you in navigating these adjustments.
