25 April 2024

Navigating the best interests of the child – evolution of Australian Family Law and new changes coming into effect May 2024

Carroll & O'Dea


Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
A significant shift from prioritising parental rights to emphasising the best interests of the child.
Australia Family and Matrimonial
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I was watching a member of the stolen generation explain on a television show that when the children were taken away from their homes, from their parents and relatives, not allowed to speak their language, beaten and abused, that it was thought at that time, that that was in the best interests of the removed children. Today we are horrified that anyone would consider that this policy was in the best interests of children.

Today, to determine what is in the best interests of children of separated parents we look to the Family Law Act 1975 (Cth).

Fundamental to the operation of Courts today administering the Family Law Act is that when a Court considers the decision it is required to make in parenting matters that its paramount consideration is the best interests of the children. How a Court determines what is the best interests of the children is to some extent governed by the Act itself.

This is important because the Act is about to change on 6 May, 2024 and the change is driven by a number of family law reviews over the past decade, the latest being the Australian Law Reform Commission's 2019 report and the 2023 Government Response to the Joint Select Committee on Australia's family law system.

The changes include:

  1. The objects of the Act have been simplified to require the Court to ensure the best interest of children are met, including by ensuring their safety.
  2. The presumption that it is in a child's best interest that the parents have equal shared parental responsibility is out.
  3. The Act now provides that each parent has parental responsibility for making joint decisions about matters that affect a child in the long term, but this can be overruled by a Court order.
  4. Parents are now required to consult when making joint decisions about matters that affect the child in the long term and when making those decisions the best interests of the child have to be the primary focus of the parental decision making.
  5. The 16 factors a Court previously had to consider when determining a child's best interests are out.
  6. A Court is now required to consider the child's safety, the child's view, the child's needs, the capacity of the child's carer to provide the child's needs, the benefit of the child having a relationship with the parents or other significant person to the child, any other relevant matter, and a child's right to enjoy their Aboriginal or Torres Strait Islander culture.
  7. The section that required a Court to consider whether a child spending equal time with each parent was in the child's best interest is out.
  8. An additional clause has been inserted in the Act which has codified the case of Rice & Asplund (1979) FLC 90 725. Now in a matter where there are previous Court orders, a Court must not reconsider the case if there has not been a significant change of circumstances and it is not in the child's best interest to re-open the case.

These changes are the beginning of a range of family law reforms aimed at ensuring separating couples can better understand the family law decision-making framework to resolve parenting matters safely and effectively.

The evolution of the law insofar as it relates to children in Australia reflects a significant shift from prioritising parental rights to emphasising the best interests of the child. This change underscores the importance of safeguarding children's well-being during and after family breakdowns. While challenges persist, the ongoing commitment to prioritising children's needs within the legal framework bodes well for the future of Australian families, by helping them resolve parenting matters in an amicable and child-centred way.

Further reforms are coming in relation to property settlement, children's contact services; and the Court's Case Management and procedures, so stay tuned.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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