There will be significant changes to how parenting orders are made when the Family Law Act amendment comes into effect on the 6th of May 2024. Two of the more significant changes are how the court determines what is in a Child’s Best Interest and the repeal of the Presumption of Shared Parental Responsibility.
The Child’s Best Interest
Under the new section 60CC(2), the old section with its 22 matters to be considered (2 Primary & 20 additional) is reduced to 6 factors: –
- What arrangements would promote the safety (including safety from 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
- Any views expressed by the child
- The developmental, psychological, emotional, and cultural needs of the child
- 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
- 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
- Anything else that is relevant to the particular circumstances of the child.
The promotion is on the emphasis for safety. The demotion occurs on the previous emphasis on:
- The extent to which parents had fulfilled their obligation to maintain a child or participate in decision making for and spending time with a child.
- The likely effect on the child of changed circumstances and separation from a parent or sibling.
- The nature of the relationship of the child with each parent.
Repealed: The Presumption of equal shared parental responsibility.
The presumption that it is in a child’s best interest for his/her parent to have equal shared parental responsibility has been repealed, so too the mandatory requirement to consider shared care. The presumption was repealed because it was commonly misunderstood to create a right to equal time arrangements.
The changes (as of 6 May 2023) are supposed to promote joint decision-making by parents with one major exception, that is only “If it is safe to do so”. This shift may lead to unintended consequences, such as an increase in domestic violence orders (DVOs) being lodged strategically within family matters to gain sole decision making by one party.
To navigate these complexities and ensure decisions are made in the best interests of children, seeking the advice of an experienced family lawyer is highly recommended.
