6 May 2024 marked the beginning of a new era for family lawyers, parents, and most importantly, children of separated parents through the long-awaited changes to the Family Law Act 1975 (Cth).
What is the purpose of the amendments?
The government passed the Family Law Amendments Act 2023 (“the FLAA”) with a view to improving and clarifying the fundamental principles to decision-making in family law, which often involves the most vulnerable members of our community, children, following the separation of their parents. The changes under the FLAA that directly impact families and children are:
- refining the “best interests” factors;
- changing the parenting pathway for the protection of victims of family violence;
- changing the expectation on how parents are to make decisions about long-term issues for their children; and
- formalising the pathway in which parents can re-open finalised parenting matters.
“Best interests” of the child
Prior to the new amendments, when asked to determine what was in a child’s best interests, the Court focused on two primary considerations and 14 additional considerations. The new amendments reduce the list of factors to consider down to six, namely:
1. 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 (whether or not a person has parental responsibility for the child);
2. any views expressed by the child;
3. the developmental, psychological, emotional and cultural needs of the child;
4. 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;
5. 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
6. anything else that is relevant to the particular circumstances of the child.
Parental responsibility
Possibly the most significant change is the removal of the presumption of equal and shared parental responsibility. The impetus for removing the presumption was because of the misconception amongst the community that “equal shared” parental responsibility accorded to a child spending equal time with parents. The concept of parental responsibility is centered on the authority of parents to make major long-term decisions for their children, such as those relating to schooling, health or religion and whether those decisions need to be made together by parents or whether one parent has the authority to make those decisions alone.
It is now the case that the parents of a child who has not yet attained 18 years of age have parental responsibility for the child. This remains the case even where parents separate. Unless otherwise ordered by the Court, if it is safe to do so, parents of a child are to consult each other about major long-term issues in relation to the child and, when doing so, have regard to the best interests of the child as the paramount consideration. In the appropriate circumstances, the Court may still depart from this “joint” parental responsibility and allocate sole parental responsibility to one parent.
If you have any questions please contact our team of top Melbourne family lawyers on 03 9804 0035.
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