Major Changes to Parenting Laws that came into effect in May 2024
Article written by Pippa Colman Family Law
On 19 October 2023, the Family Law Amendment Bill was passed by Parliament. The amendments to Part VII of the Family Law Act result in the biggest reform of parenting laws in Australia since the current regime was instituted in 2006. The objects of Part VII are twofold:
To ensure that the best interests of children are met, including by ensuring their safety; and
To give effect to the Convention of the Rights of the Child done at New York on 20 November 1989.
So, what does that mean for separating couples?
A major point of difference is that from 6 May 2024, there will be no more presumption of ‘equal shared parental responsibility’. What parental responsibility means is the responsibility that parents have for making major long-term decisions about the welfare and development of their child/children – e.g., the school they attend, significant medical decisions, their name, and religious or cultural upbringing.
The problem with the presumption of equal shared parental responsibility has been that it is regularly misunderstood by parents as meaning that parents also have a right to spend equal time with children. What the current law actually says is that where a Court makes an order for equal shared parental responsibility, it must consider making an order for equal time, if it is reasonably practicable and in the best interests of a child to do so. It is not an automatic right.
What the law now says from 6 May 2024 is that any allocation of parental responsibility for major long-term decisions is to be based on what is in the child’s best interests. A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues may provide for joint or sole decision-making in relation to all or specified major long-term issues.
If a Court makes an order for joint decision-making, then the parties, if it is safe to do so and subject to any court orders, will be required to:
Consult with the other parent in relation to each such decision; and
Make a genuine effort to come to a joint decision.
The amendments also make it clear that parents are not required to consult with each other regarding decisions that are not major long-term issues, when a child is spending time with that parent, for example, what the child eats or wears.
What does the Court now take into account, from 6 May 2024, when deciding what is in a child’s best interests? It will take into account the following:
What arrangements would promote the safety of the child and each person who has care of the child, including taking into account any history of family violence and/or any family violence order in place;
Any views expressed by the child;
The development, psychological, emotional, and cultural needs of the child;
The capacity of each person with 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 persons who are significant to the child, where it is safe to do so;
Anything else that is relevant to the particular circumstances of the child;
The child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture.
How much time a child spends with each parent will be determined by what is in a child’s best interests, taking into account the above factors. There is certainly no ‘one size fits all’ rule! It will be a matter of working out what arrangements best suit each child in each specific circumstance.
To reiterate, the new law has now applied since 6 May 2024 (except where a final hearing has commenced in Court). Whether you are currently negotiating parenting arrangements out of Court or in the middle of Court proceedings, we recommend speaking with your family lawyer about how the new laws may impact your particular case.