On 6 May 2024, changes to the Family Law Act 1975 (Cth) (‘Family Law Act’) came into effect. These new laws include changes to the parenting order framework and enforcement of child-related orders.
Changes relating to parenting matters are set out in the Family Law Amendment Act (No 87) 2023 (Cth) (‘Family Law Amendment Act’).
Why has the Family Law Act changed?
The Family Law Act has changed to further protect the best interests of the child.
Changes to the Family Law Act were informed by recommendations made in the Australian Law Reform Commission’s inquiry into the family law system. The final report offered 60 recommendations to reform and simplify a number of family law provisions, arrangements and procedures.
In particular, the Family Law Amendment Act has redrafted the parenting arrangements under Part VII of the Family Law Act. The Family Law Amendment Act simplifies judicial decision making, the best interest factors as well as parental arrangements and provisions.
Why did the best interest factors for parenting orders need to be changed?
When deciding whether to make a parenting order, the Family Court must regard the best interests of the child as the paramount consideration.
Under the previous legislative framework, the Court’s determination of the best interests of the child was based on ‘primary’ and ‘additional considerations’. However, the Australian Law Reform Commission concluded that this list of factors was overly complex and detracted focus from the best interests of the child.
New best interest factors for parenting orders
Consequently, the Family Law Amendment Act has revised s 60CC of the Family Law Act to create a new list of best interest factors for the Court to consider. These factors include:
- The arrangements in place to promote the safety of the child and the child’s carer
- Any views expressed by the child
- The developmental, psychological, emotional and cultural needs of the child
- The capacity of each proposed carer of the child to provide for the child’s needs
- The benefit of the child being able to have relationships with their parents and other people who are significant to them.
Repeal of the presumption of equal shared parental responsibility
The Family Law Amendment Act has omitted s 61DA of the Family Law Act relating to the presumption of equal shared parental responsibility when making parenting orders.
The Family Law Amendment Act has also repealed s 65DAA and s 65DAC of the Family Law Act. These sections relate to the considerations of equal time or substantial and significant time with the child’s parent and the effect of parenting orders that provide for shared parental responsibility.
Why has the presumption of equal shared parental responsibility been repealed?
The explanatory memorandum to the Family Law Amendment Bill 2023 argues that the repealing of these provisions is due to the misconception of parental arrangements after separation being determined by a parent’s entitlement to equal time instead of an assessment of the child’s best interests.
The explanatory memorandum also notes that the repealing of the presumption of equal shared parental responsibility is intended to prevent parents from agreeing to unsafe and unfair arrangements and to discourage parties from prolonged litigation owing to incorrect expectations of equal time.
Changes to the Family Law Act ensure that the best interests of the child are made paramount to prevent misconceptions from influencing parenting orders and arrangements.
How Etheringtons Solicitors can help
For the full list of changes to the Family Law Act, please visit the Federal Circuit and Family Court of Australia website.
If you would like to clarify how changes to the Family Law Act impact your own parenting orders or arrangements, we recommend speaking with a legal professional. To discuss your family law matter, please contact one of our experienced solicitors on (02) 9963 9800 or via our online contact form.