From equal shared parenting to best interests: A guide for parents

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Family law changes impact parenting matters not yet finalised and future arrangements for the children.
Australia Family and Matrimonial
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Family law in Australia is undergoing significant changes effective from 6 May 2024. These changes will impact parenting matters that are not finalised by this date, as well as future arrangements concerning children. It will not apply to matters where a final hearing has commenced by this date.

This is relevant information to assist parents and caregivers in understanding the changes.

Parenting Arrangements Post-Separation

Many parents manage to work out their own arrangements post-separation. However, in instances where agreement can't be reached, parties may seek parenting orders from the Family Court (Federal Circuit and Family Court of Australia or FCFCOA). These orders address matters such as the child's time with each parent and decision-making on significant, long-term issues.

In children's matters the Family Court's priority is to always act in the best interests of the child.

Key Changes to How Parenting Orders are Determined

The Family Law Amendment Act 2023 introduces new criteria that the court must consider in determining what is in the best interests of the child. Notably the presumption of equal shared parenting has now been removed following the findings of a report that found that unrepresented parties believed they were required to enter into equal shared care arrangements.

The criteria for determining what is in the best interests of the child now include:

Safety of the Child: Consideration of any history of family violence and relevant orders.

Child's Views: Taking into account the child's own perspectives.

Developmental Needs: Assessing the child's developmental, psychological, emotional, and cultural needs.

Parental Capacity: Evaluating each parent's ability to meet the child's needs.

Beneficial Relationships: The importance of the child maintaining relationships with parents and other significant individuals (e.g., grandparents, siblings).

Other considerations: any other circumstances that are relevant to the child.

Cultural Connection: For Aboriginal and/or Torres Strait Islander children, how the arrangements support their cultural experiences.

In instances where there are safety concerns the court must also consider:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

Clarification on joint decision making

If there are no Court orders dealing with "parental responsibility", each parent has parental responsibility for their child, and the amendments say that, if it is safe to do so, parents of a child are encouraged to consult with each other about major long-term issues concerning the child, and take into account the best interests of the child.

The Court can make an order saying that there is joint or sole decision-making responsibility for major long-term issues, or can allocate responsibility between the parents for certain decisions.

If the court makes an order for joint decision-making about long-term issues relating to a child, usually the order will require each parent to consult with each other in relation to each decision, and make a genuine effort to make a joint decision.

It should be noted that, for clarity, this section does not require third parties (e.g. schools/doctors) to verify whether a decision has been jointly made before acting on a decision about the child communicated by one of the responsible persons.

Scope of consultation on non-major long-term issues

In situations where a child is under the care of a particular person due to a parenting order, the order generally does not require that person to consult with others who have parental responsibility when making immediate, non-major decisions about the child during that period. This typically includes decisions about daily activities and needs like what the child eats or wears.

These requirements generally apply unless an order specifies differently.

Implications for Time Spent With Children

The new law does not entitle parents to equal time, although this can be if the parents agree, but focuses on arrangements that best serve the individual child's interests.

Amending Final Parenting Orders

Under the new law, to modify existing parenting orders, the court must find a significant change in circumstances and that the amendment would serve the child's best interests. Without these criteria being met, existing orders cannot be altered without mutual agreement.

If you believe that your existing orders are not in the best interest of your child and you wish to review them, we can provide considered advice to parents.

Effect on Existing Orders

The new law does not automatically alter existing parenting orders. Those with orders in place should continue to adhere to them until any amendments or new orders are made by the court.

How our family law team can assist

These changes reflect a change in the decision-making approach by the family court to prioritise the needs and safety of children in family law matters. For detailed advice specific to your situation, please consult with one of our family lawyers.

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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