Parenting matters and the new changes to the Family Law Act
Recently there have been changes to the Family Law Act 1975 (the Act), via the Family Law Amendment Act 2023 (FLAA) about parenting matters. Most of the changes as a result of the FLAA will take effect from 6 May 2024.
The changes centre around parental responsibility and the ‘best interest’ factors relating to children (among other things).
It is important to note that the reference to safety is a prominent feature of the FLAA. This is especially relevant when considering the consultation between parents for joint decision making about their children, and, when ensuring that the ‘best interests’ of a child are met in family law parenting matters.
Parental Responsibility
What is parental responsibility?
Parental responsibility relates to long-term decisions for a child regarding their care, welfare, and development. Some examples of these decisions include where a child lives, what school they attend, their involvement in religion, and decisions relating to their medical care.
How is parental responsibility currently dealt with under the Act?
Currently, each parent has parental responsibility for their children (subject to Court Orders). This responsibility relates to children who are not yet 18 years of age. This will not change under the new legislation.
There is also currently a presumption of “equal shared parental responsibility” when a Court is making parenting orders. As it stands currently, when making a Parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child.
If there is a Court Order for equal shared parental responsibility between parents, this broadly means that they need to jointly make long-term decisions for their child or children.
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has, among other things, engaged in abuse of the child or family violence. The presumption can also be rebutted with evidence that it would not be in the best interests of the child for their parents to have equal shared parental responsibility (and this evidence is considered on a case-by-case basis).
Does equal shared parental responsibility mean equal time?
The short answer is no.
Currently, if a parenting order provides for equal shared parental responsibility, then the Court must consider:
if a child spending equal time with each parent would be in their best interests; and
if equal time is reasonably practicable.
If both of these aspects are met, then the Court must consider making an Order for the child to spend equal time with their parents.
If the Court does not order equal time in these circumstances, then the Court must consider if instead substantial and significant time is appropriate.
To be clear, the current presumption of equal shared parental responsibility relates solely to the allocation of parental responsibility (decision making). It does not provide for a presumption about the amount of time the child spends with each parent.
What are the FLAA changes to parental responsibility?
Under the FLAA each parent will still have parental responsibility for their children who are under the age of 18 years (subject to Court Orders).
However, the new legislation states that there is no longer to be a presumption of equal shared parental responsibility being in the best interests of the child.
The new legislation provides that when it is safe to do so, parents should consult each other about major long-term issues relating to the child, and in doing so have regard to the ‘best interests’ of the child as a paramount consideration.
Further, a Parenting Order can provide for joint or sole decision-making in relation to all or specified major long-term issues for a child. For example, the Court may order that one parent has sole decision making for medical related decisions for a child, but that both parents have joint decision making for all other long-term decisions (such as schooling or religion).
If an Order is made for joint decision making (for one or all of the long-term decisions for a child), then parents will be required to:
consult each other in relation to each decision; and
make a genuine effort to come to a joint decision.
Under the new legislation we are also saying goodbye to the consideration the Court must give to “equal time” and “substantial and significant time” when an Order for shared decision making is made.
‘Best Interest’ Factors
A further major change relates to how the Court determines what is in the ‘best interests’ of the child.
How are ‘best interests’ currently dealt with under the Act?
Currently, when determining the ‘best interests’ of a child, such determination is considered with reference to ‘primary considerations’ and ‘additional considerations’.
The current primary considerations when determining the best interests of the child under the Act are:
the benefit to the child of having a meaningful relationship with both parents; and
the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations then comprise of 13 other considerations that the Court must consider.
What are the FLAA changes to ‘Best Interests’ factors?
In the overhaul of the legislation, there are no “primary” and “secondary” considerations. Rather, there are six general considerations when determining best interests, and two additional considerations if a child is Aboriginal or Torres Straight Islander.
The new general considerations the Court must consider are:
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (note – not just a parent);
Any views expressed by the child;
The developmental, psychological, emotional and cultural needs of the child;
The 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;
The 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; and
Anything else that is relevant to the particular circumstances of the child.
As there are no longer “primary” or “secondary” considerations, this has removed the hierarchical nature of what the Court must consider when determining what is in the best interests of the child. Instead, the Court must look at the general considerations as a whole when determining what is best for the child.
Notably, the reference to having a “meaningful relationship with both parents” has been removed.
There also appears to be much greater emphasis on safety in the new legislation, and for the parenting arrangements to promote the safety of both the child and each person who has care of the child.
Continuing with the theme of safety, also now enshrined within the new legislation is that when considering the best interests of a child, the Court must include consideration of:
any history of family violence, abuse or neglect involving the child or a person caring for the child; and
any family violence order that applies or has applied to the child or a member of the child’s family.
What do these changes mean?
As most of the changes will come into effect from 6 May 2024 it may be some time before we see how the Court will apply, adopt, and implement the new legislation.
If you have recently separated, or you are experiencing difficulties in discussing parenting issues with your former spouse or the parent of your child/ren, our Family Law team can provide trusted and tailored advice about negotiating parenting arrangements for your individual family situation, and explain how these changes may be relevant to your individual circumstances.
Ivy O’Dwyer
Associate
T 03 5226 8582
E iodwyer@ha.legal
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
Bridgette Kelly
Principal
M 0438 714 965 | T 03 5225 5275
E bkelly@ha.legal
