Impending Parenting Changes to the Family Law Act (Cth) 1975

On 6 May 2024 the changes proposed in the Family Law Amendment Bill 2023 will come into effect following the recent granting of Royal Assent by the Governor – General on 6 November 2023.

Some of the more significant changes to the Family Law Act (Cth) 1975 are: 

  • The removal of the presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility.
  • The removal of the presumed starting point of equal time with each parent or even substantial and significant time with each parent.
  • Consolidation and revised considerations for what is in a child’s best interest.

What is Equal Shared Parental Responsibility?

Parental responsibility refers to the responsibility parents have to make major long-term decisions about the welfare and development of their children. Equal shared parental responsibility is a legal standard whereby parents have an equal right and responsibility to care for their children after they have separated so that both parents could have increased levels of involvement in their children’s lives.

Current regime

The presumption of equal shared parental responsibility located in section 61D of the Family Law Act has been in place since 2006. It has often been confused with section 65DAA which gives parents a right to equal time with their children.  This presumption does not apply if there are reasonable grounds that a parent has abused the child or there is family violence and can be rebutted if the court determines is it not in the best interest of the child to apply this presumption.

New regime

From 6 May 2024, there is an entirely new section 61D and the current presumption of equal shared parental responsibility will be repealed in its entirety.

The new legislation allows for parenting orders allocating responsibility about major long-term issues in relation to the child to be either a joint decision or a sole decision in relation to all or specified major long-term issues. It may also be that a parent may have sole responsibility for specific decisions and the balance of decisions to be made jointly.

If the Court makes an order for joint decision-making about any issue, then under the new section 61DAA the parties are required:

  • to consult each other person with joint responsibility in relation to each such decision; and
  • to make a genuine effort to come to a joint decision.

Any allocation of responsibility for major long-term decisions is now based on what is in the child’s best interests, as determined by the new section 60CC provisions.

The amendments also make it clear in section 61DAB that parents are not required to consult with each other regarding decisions that are not major  long-term issues, that is,  day-to-day decisions. Once orders are made in relation to the responsibility for making major long-term decision, long-running conflicts between parents as to what they can or cannot do while the child is in their care will be eliminated.

Best interest of the child (Family Law Act Section 60CC)

When determining parenting matters the Family Law Act 1975 includes considerations that the Court must take into account when determining what is in a child’s “best interests”. These considerations are in section 60CC of the Family Law Act where the existing considerations have overlapped with other sections and caused some confusion.

A new section 60CC will come into effect and removes the two tier-hierarchical structure replacing it with the following ‘streamlined ‘new sections.  

What are the consideration for what is in the child’s best interest?

The new section 60CC of the Family Law Act will include:

  • six “general considerations”; and
  • two further considerations if a child is Aboriginal or Torres Strait Islander.

The structure is non-hierarchal and focuses on a core list of considerations to best promote the child’s welfare and development. The Court is no longer required to give more weight to one factor over the others.

The intent of this new section is to continue to provide the Family Law Court with wide discretion to consider the facts in each case, with a list of non-exhaustive considerations providing guidance. Each case is going to be different with different circumstances to be considered with objective to achieving the best outcome for the child.

The six general considerations are set out in summary below:

  1. What arrangements would best 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

The Court will now have to consider what arrangements would encourage or support a removal, reduction or avoidance of harm to the child. This is intended to apply more broadly, as it applies not just to the child but any person who has care of the child, which may include parents, stepparents, grandparents, siblings, informal kinship carers and other extended family members.

The existence of any historical or current family violence involving the child or a member of the child’s family, exposure to family violence, and family violence orders will remain relevant.

The inclusion of the term “other harm” is intended to allow the Court a wide discretion to consider the child’s particular situation.

  1. Any views expressed by the child

This simplifies the previous paragraph 60CC(3)(a) and recognises a child’s right to be heard. The Court will still have discretion in relation to how much weight to place on the child’s views in the circumstances of the case.

Supporting this consideration are further changes that come in to effect where an Independent Children’s Lawyer (ICL) who has been appointed by the Court to independently represent a child’s interests must meet with the child to seek their views, subject to certain exceptions.

  1. The developmental, psychological, emotional and cultural needs of the child

This is a new consideration that will allow a broad range of evidence to be considered concerning a particular child’s needs.

  1. The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring.

The history of the care of the child and the nature of the relationship with each person in addition to the parent’s attitude to the child and to the responsibilities of parenthood will be need to be reviewed and taken into consideration.

The inclusion of “or willingness to seek support to assist with caring” is relevant to parents with a disability, who may otherwise face assumptions about their capacity and ability to provide care to the child.

  1. The benefit to the child of being able to have a relationship with both parents, and other significant people, where it is safe to do so

This change removes the consideration for a child to have a “meaningful relationship with both parents” and will now consider a relationship not only with parents but other people of significance to the child, for example grandparents.

The inclusion of the words “safe to do so” is intended to maintain the importance of a child’s safety over their relationship with a parent.

  1. Anything else that is relevant to the child

This catch-all provision is a necessary safeguard to account for the multitude of circumstances that may arise in family law proceedings and to ensure that the Court can make decisions tailored to each family.

If the child is an Aboriginal or Torres Strait Islander child

If a child is Aboriginal or Torres Strait Islander, the Court must consider the child’s right to enjoy their culture by having the opportunity to connect with and maintain their connection with their family, community, culture, country and language, and the likely impact any proposed parenting order will have on that right.

How will these changes impact parenting arrangements?

For matters that have already commenced in the Family Law court but where a Final Hearing is not before 6 May 2024, the court applications may need to be amended as the orders being sought may no longer be relevant.

On one hand, the changes may result in parenting arrangements that are more flexible. The courts will have greater flexibility to consider all of the relevant factors in each case and to make decisions that are truly in the best interests of the child without the need to focus on equal shared parental responsibility.

On the other hand, these new changes may potentially lead to increased litigation. There will no longer be the starting point for a presumption of equal shared parental responsibility from which parties can commence negotiations.

If you need assistance with regard your parenting matter, call us on 02 8999 1800 or email info@cominoslawyers.com.au today to arrange to speak to a family lawyer.

Disclaimer

The content provided here is general information. It is not intended to be relied upon for the legal advice.