On 6 May 2024, come key changes to the Family Law Act 1975 (Cth) came into effect. These changes centred around what a court must consider when determining what it is a child’s best interests, and how separated parents can make decisions about long-term issues.
The phrase “in the best interests of a child” is a legal standard used to ensure that decisions made regarding a child’s welfare prioritise their overall well-being and it is the paramount consideration of the court when determining parenting matters.
Previously, the court was required into account 2 competing “primary considerations”, being the need to protect a child from harm and the benefit of a child in having a meaningful relationship with both parents, together with to take into account some 13 “additional considerations”.
Section 60CC of the Family Law Act sets out the 6 factors the court will consider, set out in a non-hierarchal order which allows the Court further discretion to consider the particular circumstances of each matter. The current factors that court will consider are as follows:
- The safety of the child and people who care for the child. This can include a consideration of any Family Violence Intervention Orders or any history of family violence;
- Any views which have been expressed by the child;
- The developmental, psychological, emotional and cultural needs of the child;
- The capacity of each person who is proposed to have parental responsibility for the child to provide for the child’s developmental psychological, emotional and cultural needs;
- The benefit of the child having a relationship with both parents and other persons of significance, where safe to do so. This can include significant persons such as grandparents; and
- Any other factors relevant to the particular child.
Another key change to the parenting landscape, is the removal of the presumption of equal shared parental responsibility. Parental responsibility refers to all the duties, powers, responsibilities and authority which by law, parents have in relation to children. This often includes long-term issues such as health, education, religious and cultural observances and significant changes to living arrangements. The removal of this presumption means the court is not require to presume it is in the child’s best interest for parents to make joint decisions regarding long term matters. Again, this change aims to place the best interests of a child directly in focus for the court in determining parenting arrangements, while still encouraging separated parents to consult each other where safe to do so.
The Act has also been amended to remove the mandatory consideration of particular time arrangements. Previously, where an order was made for equal shared parental responsibility, the Court was mandatorily required to consider whether equal time or substantial and significant time arrangements were appropriate and in the best interests of a child. This has now been removed, and while the court is still able to consider these arrangements, they are no longer obligated to do so.
If you require assistance in negotiating or formalising parenting matters following separation, our team at Spectrum Lawyers is here to help.