Significant changes regarding the arrangements for children in Family Law commenced in May 2024.
Some of us are old enough to remember when Family Law talked about custody and access before moving to residence and contact, and then to the current terminology of “lives with” and “spends time with.” So, in this world of change, what is the new landscape in Family Law?
A major shift: No more presumption of equal shared parental responsibility
On paper, the biggest change is the removal of the presumption of equal shared parental responsibility, which was introduced in 2006.
It is no longer a requirement that a court commence from the basis of equal shared parental responsibility. Instead, the court must focus on the safety of children and the best interests of children.
The wording behind this change emphasises that parental responsibility is about decision-making for major long-term issues. The starting position is now that, for joint decision-making on such issues, parents must consult each other and make a genuine effort to reach a joint decision.
It will be interesting to see how the courts apply this in practice – for example, whether it would be considered within or outside the new approach if a parent unilaterally changes a child’s school or initiates a medical procedure.
Refocusing on children’s rights and safety
The amended legislation highlights that, when it comes to children, the Family Law Act has two core objectives:
- Ensure the best interests of children are met by ensuring their safety
- Give effect to the Convention on the Rights of the Child
The Convention on the Rights of the Child includes principles such as:
- Freedom from discrimination
- Ensuring the child has the protection and care necessary for their wellbeing
- A child has the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contact with both parents
On a practical level, this means that the new Act is requiring the court not to start from equal shared parental responsibility but to have as its first consideration a child’s safety and the matters contained in the convention on the rights of the child.
Simplifying the court’s considerations for best interests
Alongside the shift in focus, the changes have also simplified the considerations the court must look at when determining what is in a child’s best interests. The new considerations are:
- What arrangements would promote the safety of the child and a person caring for the child (including safety from family violence)
- 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 those needs
- The benefit to the child of having a relationship with their parents and other significant people, where it is safe to do so
- Anything else that is relevant to the particular circumstances of the child
One year on: how are these changes playing out?
Now being almost a year since these changes were introduced, we are seeing a stronger focus on the safety of children and a greater emphasis by parents on achieving outcomes that genuinely serve the child’s best interests.
Want to know more?
Working through these updated factors is a valuable way to evaluate ideal arrangements for your child – and to maximise the chances of achieving the right outcome. Book an appointment with our Family Law team.
