In May 2024, we’ll see some of the most significant changes in decades to the way the Family Courts approach parenting matters come into effect.
What’s changing and why?
The Amendments to the Family Law Act that passed through parliament in October 2023 and come into effect on 6 May 2024 are intended to ensure the best interests of the child are at the centre of all parenting decisions and set out:
- what the court must consider when determining what’s in the child’s best interests, and
- how parents should approach decisions about long-term issues for their children.
The ‘presumption of equal shared parental responsibility’ will become a thing of the past
Once the changes come into effect, the courts will no longer work off the presumption that ‘equal shared parental responsibility’ is in the best interests of the child.
For a long time, this presumption has been incorrectly perceived to mean that children should spend equal time with each parent, with many family law experts believing it is often counterproductive to the best interests of the child.
Prioritising the ‘best interests’ of the child
The factors the courts consider when determining what is in the child’s best interests will be condensed down from fifteen to seven. These include:
- Safety of the child and those who care for the child, and any history of family violence.
- Views and wishes of the child.
- Needs of the child, including developmental, psychological, emotional, and cultural needs.
- Capacity of those responsible for the child to meet their psychological, emotional, and cultural needs.
- Relationships with parents, grandparents, siblings, and others who are significant to them.
- Other factors relevant to the child’s circumstances.
- Cultural identity and heritage and Aboriginal and Torres Strait Islander children’s right to experience and enjoy their culture.
How parents approach major and long-term decisions
The presumption that it is in the best interests of the child for both parents to share parental responsibility and have contact with both parents remains. This means that parents continue to be expected to make a genuine effort to consult with each other and make joint decisions relating to long-term and significant issues like education, healthcare and religion.
In situations where there is a risk of family violence or substance abuse issues, the other parent lacks the mental capability to make decisions, or there is a breakdown of communication, parents can apply to the courts to be awarded sole parental responsibility.
When parents can’t agree
In situations where parents can’t agree on parenting matters, they will continue to be required to engage in mediation with an Accredited Family Dispute Resolution Practitioner before they can file to have the matter heard by the courts. Of course, there are exceptions to the rule where there is family violence, a party cannot participate due to incapacity or distance, urgency is a factor, or a party has contravened or shown serious disregard for a previous court order. But otherwise, the Family Dispute Resolution process is compulsory.
What do the changes mean for existing parenting orders?
Existing parenting orders won’t be affected by these changes. If you would like to review or change an existing parenting order in light of the changes and don’t have the other parent’s consent, you will need to be able to demonstrate to the court that:
- There has been a significant change in circumstances, and
- It is in the child’s best interests for the parenting order to be reviewed and/or changed.
Before filing with the courts to have a Parenting Order reviewed, it is expected that both parents make a genuine effort to come to an agreement. The stressful and emotional nature of these matters means that mediation can be an effective mechanism for working through the issues, finding common ground and reaching a mutually satisfying arrangement without going through the courts.
What will the changes mean for you and your children?
If you’re currently navigating a separation or divorce or would like to understand how these changes could impact your existing parenting arrangements, the team at Lakey Family Law is here to help. We have extensive experience in all aspects of divorce, property settlements and parenting matters and can assist – contact us for an initial, obligation-free chat.
For more information, see…
- How the Family Dispute Resolution process works
- Formalising your parenting arrangements without going to court