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Earlier this month, changes to the Family Law Act 1975 (Cth) (‘FLA’) commenced, impacting the way the Federal Circuit and Family Court of Australia will now make decisions in relation to parenting matters.

These changes affect all new and existing parenting proceedings, as well as Applications for Consent Orders being considered after 6 May 2024.

See below the major changes that will affect you and your parenting matter. Please note, all existing court orders made before these changes remain in full force and effect.

Convention on the Rights of the Child

The legislative changes are aimed at ensuring the best interests of the child/ren are being met (including ensuring their safety) and to give effect to the Convention on the Rights of the Child (‘CRC’).

The CRC is an international agreement promising to protect the rights of children. It explains who children are, all their rights (civil, political, economic, social, health, cultural and to appropriate legal protection), and the responsibilities of governments.

More on this later – first, the changes.

Best interests of the child amended

S 60CC of the FLA has been amended, setting out a new list of six (6) factors the court must consider when determining the best interests of a child. These include:

• What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child);
  • In considering this factor, the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child’s family;

• 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 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 their parents, and other people who are significant to the child, where it is safe to do so; and

• Anything else that is relevant to the particular circumstances of the child.

It is important to note these are all general considerations that are weighed by the court in making a decision – they are not in any hierarchical order, meaning one is not more important than the others.

In addition to the above, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture must now also be considered, including the likely impact any proposed parenting order would have on that right.

Presumption of equal shared parental responsibility repealed

Previously the court operated based on a presumption that parents equally shared parental responsibility for their children – meaning power to make decisions in relation to long-term matters affecting their children, such as religion, health, schooling etc.

This was a presumption that needed to be rebutted if a parent wanted sole parental responsibility.

Now, separated parents will still retain parental responsibility, however, the presumption (and therefore the need to rebut it) has been removed. As a result, the court can no longer presume it is in the child’s best interests that their parents be required to make joint decisions in relation to major long-term issues.

Under the new section 61D(3) the court can still make orders relating to the allocation of parental responsibility, but instead adopts the terminology ‘joint decision making on major long-term issues’.  An order of this nature would mean parties are required to consult each other and make a genuine effort to come to a joint decision.

The changes to the legislation also (unless there are court orders stating otherwise, and as long as it is safe to do so) encourage parents to consult each other about major long-term issues in relation to the child, having regard to the best interests of the child as the paramount consideration.

Parents do not need to consult each other on issues that are not major long-term issues, like day-to-day decision making.

Consideration of equal or substantial and significant time no longer required

Previously, if an order for equal shared parental responsibility was made, the court was required to consider the child/ren spending equal time, or substantial and significant time, with each parent. This is no longer the case. Time arrangements will now be considered in accordance with the child/ren’s best interests.

Expansion of the definitions of ‘member of the family’ and ‘relative’

These have both now been expanded to include Aboriginal and Torres Strait Islander concepts of family.

Interconnection between the above changes and the CRC

The amendments to the FLA detailed above help reflect and implement the values set out in CRC, which, as mentioned above, is an agreement promising to protect the rights of children.

It stipulates, among other things:

• That the primary consideration in all actions concerning children undertaken by courts of law should be the best interests of the child/ren, and for State Parties (i.e. Australia in this case) to ensure children such protection and care as is necessary for their well-being (Article 3);

• A child’s separation from their parents should not occur unless authorities, subject to judicial review, determine that the separation is necessary for the best interests of the child (Article 9); and

• That both parents have common responsibilities for the development and upbringing of their children, and that the child/ren’s best interests should be their basic concern (Article 18).

The expansion of the definitions of ‘member of the family’ and ‘relative’ mentioned above reflects the CRC by expanding the opportunity of interested parties to participate in proceedings (Article 9) and respecting the responsibilities, rights, and duties of members of the community, as provided for by local custom, to provide appropriate direction and guidance (Article 5).

The new six (6) factors in s 60CC, detailed above, reflect from the CRC how:

• Appropriate measures should be taken “to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19);
• Children capable of forming their own views have the right to express those views freely in all matters affecting them (the views being given due weight according to age and maturity), including the opportunity to be heard in any judicial proceedings affecting them, either directly or indirectly (i.e. through a representative) (Article 12);

• A child belonging to an ethnic, religious or linguistic minority or who is indigenous must “not be denied the right, in community with other members of [their] group, to enjoy [their] own culture, to profess and practise [their] own religion, or to use [their] own language” (Article 30);

• Parents, and others responsible for a child’s care, have a “primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development” (Article 27);

• When the child is separated from one or both parents, the child still has the right to maintain relations and direct contact with that parent on a regular basis, except if contrary to their best interests (Article 9).

For advice and assistance with your parenting matter, feel free to contact our firm on (03) 9500 2299 to book an appointment with one of our solicitors.