This week we welcome the most substantial changes to the law relating to parenting children after separation and divorce in almost two decades.

The Australian Government has introduced the Family Law Amendment Act 2023, and it came into effect on 6 May 2024. These changes aim to simplify the legal framework the Court and legal system uses to make decisions about child custody, decision making and other parenting issues for separated families.

As before, the goal of the law remains to prioritise the best interests of children, but now the Court will have streamlined considerations to weigh in its decision making and there is a higher emphasis on ‘safety’ for children and their caregivers throughout the changes to the law.

These changes will apply to parents if they have a parenting matter before the court that has not yet been finalised before 6 May, to families who are not in Court but end up in legal proceedings in future and for parents that are working through post-separation care arrangements for their child outside of Court.

The Family Law Amendment Act 2023 sets out new laws about what the court must consider when determining the best interest of the Child. Additionally, there are new laws about how separated parents are to make decisions about long-term issues for their child.

The best interests of the child

One of the most noteworthy alterations is the removal of the presumption of ‘equal shared responsibility’. Introduced in 2006, this presumption sought to ensure that separated parents had an equal say in major decisions regarding their children's lives. However, it was widely misinterpreted to mean that both parents should have equal care of the child. This interpretation sparked debate and controversy for many years and has fueled many contested Court proceedings since.

The Australian Law Reform Commission identified this phrase was not serving its intended purpose and needed reform. Under the new laws, the focus shifts from 'equal shared responsibility' to 'the best interests of the child' and providing for the Court to tailor outcomes for each family, rather than following a set, staged pathway of considering different levels of care arrangements.

This change is hoped to provide a more nuanced evaluation of each unique family situation.

Six key factors for consideration 

The revised family laws about children stipulates six essential criteria that judges must consider when determining what is in the child's best interests. These criteria have been streamlined from the previous list of 15, making the process more accessible and efficient. The key factors now include:

• Child safety: the paramount consideration is the safety of the child and their caregivers. Courts must prioritise arrangements that ensure the child's safety, protecting them from family violence, abuse, neglect, or any other form of harm. The term ‘safety’ has not been defined by the legislation, and at this point is unclear as to whether the Courts will give the concept a wide or narrow meaning when deciding cases.
• Child's views: the child's views are to be considered in custody decisions. It is still expected that the Court would analyse a child’s views by taking into account the age and maturity of the child, as well as whether there has been outside influence in their views being formulated.
• Benefit of maintaining relationships: the family law recognises the importance of maintaining relationships with both parents and other significant individuals in the child's life. If it is safe, arrangements that foster these relationships are encouraged.
• Developmental and emotional needs: a child's developmental, psychological, emotional, and cultural needs are crucial factors. Courts must evaluate how custody arrangements address these aspects to ensure the child's best interests are met.
• Capacity of proposed carers: the ability of each caregiver to meet the child's developmental, psychological, emotional, and cultural needs is assessed. This helps ensure that the child receives adequate care and support.
• Relevance to specific circumstances: any additional factors relevant to the specific circumstances of the child. This appears to be a wide category that may capture many of the previous considerations which have been scrapped, but which may still be relevant in identifying what is in a particular child’s best interests.

For Aboriginal or Torres Strait Islander children, the law emphasises their right to enjoy and maintain their cultural identity. This ensures that cultural connections are preserved and respected.

These factors aim to provide a more comprehensive and child-centric approach to family law, focusing on the well-being and safety of the child.

Factors such as the lifestyle and background of the child and parents, the attitude to parenthood demonstrated by each parent, and the parents' prior efforts to spend time with the child have been removed from the list. This simplification aims to create a more focused approach to decision-making, ensuring the child's welfare remains at the forefront of any decisions.

Addressing family violence

Maintained in the new legislation is the requirement that any history of family violence be considered when determining parenting arrangements. This may include identifying whether family violence or protection orders have been made.

Long-term decisions about children

If the court is making orders about how parents decide major long-term issues (for example, education, religion and healthcare) the court will make these orders based on what is in the best interest of the child.

If the court makes an order for ‘joint decision making’ then parents will be required to consult with their former partner to come to a joint decision.

Agreements to make joint decisions do not have to be decided by the Court. Where this is possible it can be formalised through a parenting plan.

What about existing parenting orders?

Existing parenting orders will not be automatically changed by the new law. People with existing parenting orders should continue to follow those orders.

If parents are still unsure, they should obtain legal advice about the application of the new law to their current parenting matter or their individual circumstances.

Changing final parenting orders

It is important to understand that if parents want to change their existing parenting orders, the court must consider:

• whether there has been a significant change of circumstances, and
• it is in the best interests of the child for the final parenting order to be reconsidered. 

If the court is not satisfied that these requirements are met, the orders cannot be changed without the agreement of the other parent or party. When identifying whether it is in the best interests of the child for the parenting arrangements to be reconsidered, the Court will be cautious if the onset of new litigation will unduly expose the child to conflict between his or her parents.

Benefits for families and family lawyers acting of their behalf

These changes represent a substantial step towards creating a more comprehensive and child-centered family law system. For families, it means that decisions regarding parenting arrangements will be made with a primary focus on the child's best interests, promoting their safety, development, and well-being.

Family lawyers will have a clearer legal foundation to argue cases involving family violence and other complex issues, ensuring that their clients' voices are heard and their rights protected. However, it's essential to note that the transition to these new laws may create some uncertainty and potential for litigation as the legal community adapts.

These changes will undoubtedly affect our clients, and as family lawyers, we are committed to advocating for their rights and ensuring that their children's welfare is at the forefront of every case. While the transition may bring some challenges, the long-term benefits of a safer and more child-focused legal framework are undeniable.