As of May 6, 2024, significant changes to parenting laws will affect all new and ongoing parenting cases.
The Family Law Amendment Act 2023 outlines these new laws, influencing the court’s approach to the following:
- Key Considerations – Factors the court must consider in determining a child’s best interests.
- Decision-Making Responsibility – Who will decide on long-term matters concerning the child.
- Parenting Time – When children will spend time with a parent they don’t live with.
- Re-Opening Cases – Conditions under which concluded cases can be revisited.
Determining the Best Interests of the Child
The court will now assess six primary factors when determining parenting arrangements that serve the child’s best interests:
1. Child and Carer Safety
Ensuring the child’s safety is paramount, along with the safety of those caring for them.
The court carefully evaluates potential risks or concerns involving both parents and any other caregivers.
2. Child’s Views
The child’s own preferences and opinions are taken into account when deciding their living arrangements and other significant matters.
The weight given to the child’s views depends on their age and maturity.
3. Child’s Needs
The court examines the developmental, psychological, emotional, and cultural needs of the child to ensure that parenting arrangements align with these requirements.
4. Carer Capacity
Evaluating each parent’s ability to provide for the child’s overall needs, including their capacity to support the child’s developmental, psychological, emotional, and cultural growth.
5. Relationships
Recognizing the benefits of maintaining a positive relationship between the child and both parents, as well as other significant individuals, such as grandparents and siblings.
6. Relevant Circumstances
Any other pertinent information affecting the child’s well-being.
For Aboriginal or Torres Strait Islander children, the court will also consider the importance of their cultural identity and the impact of parenting arrangements on their ability to connect with that culture.
Long-Term Decision-Making Responsibility
Parents will generally retain parental responsibility unless modified by court orders. However, starting May 6, 2024, the presumption of equal shared decision-making will no longer apply unless final hearings have begun.
Courts can order joint or sole responsibility for long-term decisions based on the child’s best interests. If joint decision-making is ordered, parents must genuinely consult with each other to reach a consensus.
Where parents have mutually agreed on parenting arrangements, they can formalize them through a parenting plan or court-approved Consent Orders.
The new amendments encourage collaborative consultation between parents to make decisions that prioritize the child’s best interests.
Parental Time with Children
Despite common misconceptions, the Family Law Act 1975 has never guaranteed equal time with both parents.
Previously, the court was required to consider this arrangement, but the new laws remove the presumption of equal time as a starting point.
Now, each case will be evaluated based on what best serves the child’s interests.
Effect on Existing Parenting Orders
Existing parenting orders will remain unaffected, and parents should continue to follow them.
Re-Opening Parenting Matters
A final parenting order can only be reconsidered if:
Significant Change
A significant change in circumstances refers to any development that fundamentally alters the child’s or parents’ situation since the final order was issued.
This change must be substantial enough to warrant a re-evaluation of existing arrangements.
Examples of a significant change would include things like relocation, emergence of health issues, substance abuse, criminal activity or family violence.
Child’s Interests
The court will also analyze whether reopening the matter would ultimately serve the child’s best interests. This analysis includes examining:
- Whether current arrangements are causing emotional stress or impacting the child’s mental health.
- Whether new circumstances are hindering the child’s growth, educational progress, or cultural identity.
- If the current arrangements restrict the child’s ability to maintain healthy relationships with both parents or other significant individuals, like siblings and grandparents.
Need Family Law Advice?
If you need guidance on navigating parenting orders or any other family law matter, it is recommended that you seek legal advice from a qualified Family Law professional.
