Australian family law has undergone significant changes to place the best interests of children at the centre of parenting decisions. Most of the key changes to parenting matters commenced on 6 May 2024 and changed how courts approach parental responsibility, parenting orders and the factors considered when determining what is in a child’s best interests.
The reforms also introduced new information-sharing measures and changes intended to improve the way family law proceedings respond to family violence, child abuse and neglect.
Equal Shared Parental Responsibility
Prior to these reforms, there was a presumption in family law that both parents had ‘equal shared parental responsibility’ for their children.
If the Federal Circuit and Family Court of Australia (the ‘Court’) was asked to make orders about parenting arrangements, it was required to presume that both parents would take a role in making decisions about major long-term issues for their children, such as education, religious practice and medical treatment.
The presumption could be rebutted, such as where there was a risk of family violence involving one of the parents. In those circumstances, the Court could make an order for parental responsibility based on the best interests of the child.
The presumption was criticised as part of the Australian Law Reform Commission’s 2019 Inquiry into the Family Law System. It was found to have restricted the Court’s ability to make the best decisions for each child, focused too much attention on parents’ interests, and made it more likely for parents to agree to inappropriate arrangements out of court because of confusion about the meaning of the presumption.
It also placed additional pressure on vulnerable people who had to demonstrate to the Court that the presumption should not apply because of family violence.
Removal of the Presumption of Equal Shared Parental Responsibility
From 6 May 2024, the presumption of equal shared parental responsibility was removed from the Family Law Act for parenting proceedings, subject to the transitional rules applying to proceedings where the final hearing had already commenced.
The removal of the presumption means that the Court no longer starts with an assumption that parents should have equal shared parental responsibility. Instead, parental responsibility is determined on a case-by-case basis, with the best interests of the child as the paramount consideration.
The Family Law Act 1975 now provides that a parenting order may provide for joint or sole decision-making responsibility in relation to all or particular major long-term issues.
It is important to understand that removing the presumption does not mean that the Court cannot make orders for shared parental responsibility. The Court can still make an order for joint decision-making where that arrangement is in the best interests of the child.
Similarly, there is no automatic entitlement to equal time with a child. The appropriate parenting arrangement depends on the individual circumstances and the best interests of the child.
What Factors Does the Court Consider When Deciding a Child’s Best Interests?
Under the current family law framework, the Court must consider a number of factors when determining what is in a child’s best interests.
The six core considerations are:
- The safety of the child and people caring for the child. The Court considers what arrangements would promote safety, including protection from family violence, abuse, neglect or other harm.
- The child’s views. Any views expressed by the child must be considered, taking into account the circumstances relevant to those views.
- The child’s developmental, psychological, emotional and cultural needs.
- The capacity of each person with, or proposed to have, parental responsibility. This includes their capacity to meet the child’s developmental, psychological, emotional and cultural needs.
- The benefit of the child having relationships with parents and other significant people, where it is safe to do so.
- Anything else relevant to the particular circumstances of the child.
The legislation also requires the Court to consider additional matters when determining the child’s best interests in relation to an Aboriginal or Torres Strait Islander child, including matters concerning the child’s Aboriginal or Torres Strait Islander culture and identity.
The current Family Law Act 1975 also requires the Court to consider matters such as any history of family violence, abuse or neglect when considering safety.
Can the Court Still Order Equal Time?
Yes. The removal of the presumption of equal shared parental responsibility does not prevent the Court from making an order for a child to spend equal time with each parent.
However, equal time is not automatically required or presumed to be appropriate. The Court must consider whether the proposed parenting arrangement is in the child’s best interests and whether it is reasonably practicable in the circumstances.
This means that parents should not assume that the law gives either parent an automatic right to equal time with their child.
Other Family Law Amendments
As part of the broader reform of Australian family law, the Government also introduced substantial changes to facilitate information sharing between the family law system and relevant government agencies.
Information Sharing in Family Law Proceedings
The reforms established new information-sharing mechanisms that allow the Court to obtain relevant information from information-sharing agencies, including police, child protection and firearms agencies, concerning matters such as family violence, child abuse and neglect.
The family law information-sharing framework is intended to improve the ability of the family law system to identify and respond to risks affecting children and other people involved in parenting proceedings.
These measures aim to support the protection of individuals, particularly children, where there are concerns about family violence, abuse or neglect.
Changes to Protect Children and Parties From Prolonged Litigation
Another important aspect of the reforms is the expanded power available to protect parties and children from the detrimental effects of prolonged litigation.
The reforms also introduced changes intended to streamline compliance and enforcement procedures concerning orders relating to children. These changes are designed to support a more effective response where parenting orders are not being followed.
Independent Children’s Lawyers and Children’s Views
The amendments also strengthened the role of the Independent Children’s Lawyer in family law proceedings.
Independent Children’s Lawyers are now required to meet directly with children in most circumstances, subject to limited exceptions. This is intended to ensure that children’s views can be properly considered and brought before the Court in appropriate cases.
What Do the Family Law Changes Mean for Parents?
The changes mean that parenting disputes are no longer approached on the basis of an automatic presumption that parents should have equal shared parental responsibility.
Instead, the focus is on the individual circumstances of the child and what arrangements are in their best interests.
For parents, this means that issues such as family violence, the child’s needs and views, each parent’s capacity to care for the child, and the practical circumstances of proposed parenting arrangements can be particularly important when determining appropriate parenting orders.
Every family is different, and the appropriate parenting arrangement will depend on the circumstances of the child and the parents involved.
How Revolance Legal Can Help
If you are separated or involved in a parenting dispute, understanding how the current family law framework applies to your circumstances can help you make informed decisions about your child’s care and your legal options.
Revolance Legal provides family law advice to clients in Sydney regarding parenting arrangements, parental responsibility and other family law matters.
If you need advice about your parenting arrangements or how the recent family law changes may affect your circumstances, call our family lawyers in Sydney on 02 9266 0688 or email [email protected].
This is general information only and you should obtain professional legal advice relevant to your circumstances.
Frequently Asked Questions About Family Law Changes
When did the new family law parenting rules start?
Most of the major parenting changes commenced on 6 May 2024. The changes apply to new and existing parenting proceedings, subject to transitional rules, including rules concerning proceedings where a final hearing had already commenced.
Has equal shared parental responsibility been removed?
The presumption of equal shared parental responsibility has been removed. This means the Court no longer starts with a presumption that parents should have equal shared parental responsibility. The Court can still make an order for joint parental responsibility where it considers that arrangement to be in the child’s best interests.
Does a parent have a right to equal time with their child?
No. There is no automatic right or presumption that a child should spend equal time with each parent. Parenting arrangements are determined according to the child’s best interests and the circumstances of the particular case.
What does the Court consider when deciding what is in a child’s best interests?
The Court considers six core matters, including the child’s safety, any views expressed by the child, the child’s developmental, psychological, emotional and cultural needs, each relevant person’s capacity to meet those needs, the benefit of relationships with parents and other significant people where safe, and anything else relevant to the child’s circumstances.
Can family violence affect parenting orders?
Yes. The child’s safety and the safety of people caring for the child are central considerations when the Court determines the child’s best interests. The Court must consider relevant history of family violence, abuse or neglect when assessing safety.
Can the Court obtain information from police or child protection agencies?
Yes. The 2024 reforms introduced new information-sharing provisions that allow the Court to obtain relevant information from specified information-sharing agencies in parenting proceedings, including information relating to family violence, child abuse and neglect.