What are the recent changes to Family Law ?
We have many clients who have asked us about the recent Family Law reform and associated changes. These amendments will change the way the Court approaches parenting matters.
Most of the changes commenced on 6 May 2024 and may affect you if you are currently or in the future trying to determine the right parenting arrangement for your child or children.
The Family Law Amendment Act 2023 sets out new laws about:• What a court must consider when determining what is in the child’s best interests • How separated parents are to make decisions about long-term issues for their children.
What are the main changes ?
The main changes are: 1. the ‘presumption’ of equal shared parental responsibility no longer exists. 2. a new definition of what the court must consider when determining what is in ‘the best interests of the child’; 3. removing the requirement that the courts must consider either equal time or substantial time and significant care arrangements; 4. the grounds for making changes to final Parenting Orders; and 5. the role of the Independent Children’s lawyer. 6. when deciding parenting arrangements, there are a simpler list of best interests’ factors for courts to consider.
In 2006 a legal presumption that equal shared responsibility was in the best interest of children, was introduced into Australian family law.
Since that time there has been over six formal inquiries, several evaluations and further independent research, of the family law system.
One of the findings was unjust outcomes and the safety of children was being compromised, with the family law presumption that equal shared responsibility of children, was in their best interest.
These negative outcomes for the children were more prevalent in abusive, controlling and or violent family situations.
While many people believe that parents are entitled to spend equal time with their child, this has never been the case under Australian law. Yet decision about how much time a child spends with each parent was presumed to be equal, unless evidence could demonstrate this wasn’t in the best interest of the child or children.
Following the changes there is no consideration the court must consider equal time care arrangements or substantial and significant time care arrangements. The court must only consider whether a particular parenting arrangement is in a child’s best interests.
Previously a requirement was to consider what would facilitate a meaningful relationship between a child and their parent. This is no longer a primary consideration; it is just one of the six factors which need to be considered.
How does the Court determine what is in the best interests of a child?
Changes to the Family Law Act 1975 ( Cth) set out a simplified list of six factors which need to be considered when determining whether a particular proposal is in the best interests of a child. These factors are:- • the safety of the child and people who care for the child (including any history of family violence or family violence orders); • the child’s views; • the development, psychological, emotional and cultural needs of the child; • the capacity of each person who will be responsible 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 them (eg grandparents and siblings); and • anything else which is relevant to the particular circumstances of the child.
If a court is making orders about an Aboriginal and/or Torres Strait Islander child, there is an additional requirement that the court will also consider how the parenting arrangements will help that child to experience their Aboriginal and Torres Strait Islander culture.
Previously family violence was considered as a primary factor. The changes have a new focus on the safety of both the child and for people who are caring for the child, highlights the relevance of family violence orders and past violence, abuse and neglect in determining future parenting arrangements.
Overall, these changes remove the hierarchy of considerations which means that now, more than ever, each case will be different.
Overall, the changes to the family law system have strengthened the child focused approach, yet continue to encourage parents to make decisions together if possible. If this is not possible the Court will consider the best interest factors for children in their current and future situation.
It is important not to make presumption about your situation and to seek legal advice. This article contains general information and is not intended to represent legal advice.
With over 30 years’ experience in family law, Southern Vales Legal can assist you in all areas of family law including Court proceedings, parenting Plans and Consent Orders.
Contact Southern Vales Legal on 08 8323 9066 for a free initial appointment.
