Since 2006, parenting decisions in the Family Court have proceeded on the basis that equal shared parental responsibility to both parents is in the best interests of children in matters where both parents are able to co-parent effectively and where there are no allegations of family violence. Parental responsibility does not govern who has the children live with them post separation, but rather, who is responsible for making long-term decisions for major long-term issues such as decisions in relation to a child’s education, health and religious or cultural upbringing.

Since 2006, it has been determined that equal shared parental responsibility does not adequately prioritise the safety of children and that the notion of “equal shared parental responsibility” is often construed and improperly applied in a way that may put children at risk. This is because the promotion of equal shared responsibility is often paired with the promotion of children’s relationship with both parents which has the unintended effect of minimising the risk of their exposure to mental, emotional and/or physical harm. This has now been addressed in Parliament who on 19 October 2023 passed significant reforms in relation to parenting matters through The Family Law Amendment Bill 2023.

The Family Law Amendment Bill 2023 is amending the Family Law Act 1975 to ensure that the best interests of children are prioritised and placed at the centre of matters involving children in the family law system. These reforms have been introduced to make Australia’s family law system simpler, safer and more accessible for separating families and their children.

The key amendment in relation to parenting matters is the removal of the presumption of equal shared parental responsibility and the presumption of equal shared care.

Under the new legislation and changes to the Family Law Act 1975, which are set to come into effect on 6 May 2024 parenting decisions will be based solely on what is in the best interests of the child (or children), particularly the need to protect children from harm. Under the new law, children’s safety is considered more important than the benefits children obtain from a meaningful relationship with both parents.

The new legislation is intended to be a simpler and more child-focused framework to assist parents and the courts in ensuring that the children’s best interests are at the heart of all parenting disputes.

Under the new legislation, the courts will consider the proposed ‘best interests’ factors when determining parenting arrangements, as follows:

  1. The appropriate arrangements that are required to encourage the safety (i.e: safety from family violence, abuse, neglect or psychological harm) of children and individuals who have parental responsibility for them.
  2. Children’s views.
  3. Children’s developmental, psychological, and emotional needs along with the capability of each proposed carer to provide for such needs.
  4. The benefit to children of being able to maintain a relationship with both the parents and other individuals who are significant to them.
  5. Other relevant circumstances of the child that may specifically affect the child’s best interests.

Apart from the removal of the presumption of equal shared parental responsibility, other changes related to parenting matters include the following:

  1. The requirement for an Independent Children’s Lawyer to meet directly with children in order to give children a greater voice in parenting matters.
  2. When seeking a review of final parenting orders, parties need to prove to the courts that there had been a significant difference in circumstances since the orders were made and that it is in the best interest of the children for the final parenting orders to be reconsidered.
  3. The definition of ‘member of the family’ is now inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship.
  4. The enhancement of case management to prevent vexatious litigants.
  5. Simplified provisions about compliance and enforcement in regard to parenting orders.
  6. Regulation-making powers are being established to allow the Government to introduce schemes that set requirements for family law report writers.
  7. A focus on children’s independent wishes in matters under the Hague Convention on the Civil Aspects of International Child Abduction.

We note the above additional changes are intended to aid the Court’s resources and procedures so as to hopefully improve the Court’s ability to address concerns arising in matters in a timely and more meaningful way.

The changes brought by The Family Law Amendment Bill 2023 will be implemented in stages over the course of the next few months with all changes to be effective from 6 May 2024.

Here at Lynn and Brown Lawyers, we recognise the complexities that may arise in parenting matters as a result of these changes to the law.  Please get in touch with our Family Law Team for trusted legal advice and assistance in relation to your matter.

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