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The Family Law Act – key changes which may impact your parenting matter

Changes to the Family Law Act – parenting matters

It is crucial that if you are going through family law parenting proceedings, you understand your rights and responsibilities under these new provisions and seek professional guidance when navigating parenting disputes.

The recent changes to parenting laws under the Family Law Act 1975 are the most significant since 2006, about how the court now makes parenting orders in the best interests of children.

The key changes which may impact your parenting matter include:

  • removing the presumption of equal shared parental responsibility;
  • a shorter and simplified definition of how a court assesses the “best interests” of a child;
  • new laws regarding varying and amending final parenting orders; and
  • greater duties on an Independent Children’s Lawyer (“ICL“).

Equal shared parental responsibility

There was a common misconception that equal shared parental responsibility meant that parents would share time equally. Instead, shared time equally simply gave both parents the power to make major long-term decisions, such as the choice of a child’s school, religion and health.

There was an obligation on parents to consult the other about these issues and make a genuine effort to come to a joint decision.

The amendment removes the automatic presumption of equal shared parental responsibility and instead requires the court to consider whether to make an order for “joint decision-making about major long-term issues” on a case-by-case basis depending on the child’s individual circumstances and their best interests.

Removal of automatic need to consider equal time and significant and substantial time

Previously, if an order was made for equal shared parental responsibility, the court specifically had to consider whether to make an order for equal time with the child, or if that was not appropriate, an order that the non-resident parent spend “substantial and significant time” with the child. Significant and substantial time included both weekdays and weekends and time during holidays and special days.

The amendments now remove the automatic obligation to consider such arrangements. Parenting orders will continue to be based on the child’s best interests, but without the earlier direction in place.

 The ‘Best Interests of the Child’

The best interests of a child used to be assessed from a list of 16 ‘primary’ and ‘additional’ considerations. This list now consists of 6 general considerations by the Court:

  • What arrangements would promote the safety of the child and each person who has the care of 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 and to provide for the child’s development, 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 them, where it is safe to do so.
  • Anything else that is relevant to the particular circumstances of the child.

When considering the above, there are some fundamental issues the court must take into account:

  • whether there is any history of family violence, abuse or neglect involving the child or a person caring for the child; and
  • any family violence order that applies or has applied to the child or a member of the child’s family.

This consideration will greatly impact the court’s decision towards parenting arrangements, with the intention to protect the child from potential risk of harm.

Making changes to final parenting orders

Under the changes, the law now clearly states that if final parenting orders are in place, the court must not reconsider the order unless:

  • it has considered whether there has been a significant change of circumstances since the final parenting orders were made; and
  • that it is in the best interests of the child for the final parenting orders to be altered.

The Role of the Independent Children’s Lawyer

An Independent Children’s Lawyer (ICL) is appointed in complex parenting matters to assist a court in deciding what arrangements are in the best interests of the child.

The new changes requires an ICL to meet with the child at some point prior to the making of final orders and provide the child with an opportunity to express a view.

This duty is required in all cases unless the child is under the age of 5, if the child does not want to meet with the ICL, or in exceptional circumstances, for example the child is to be exposed to physical or psychological harm by meeting with the ICL.

The ICL must ensure that any relevant views expressed by the child are fully put before the Court.

Please contact us for advice relating to your individual parenting matter.

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