The Family Law Act 1975 (Cth) has been amended to reflect several changes to parenting matters. The amendments take effect on 6 May 2024 and will affect all parenting matters not finalised or commenced a Final Hearing before 6 May 2024.
Best Interest Considerations
First, amendments have been made to section 60CC of the Family Law Act 1975 (Cth), shortening the list of factors a Court must consider when determining what is in a child’s best interests from 16 considerations to six.
A Court must consider the following:
- what arrangements would promote the safety of the child and each person who has care for the child;
- the views 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 of the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- the benefit to the child of maintaining a relationship with each parent and other persons of significance to the child where it is safe to do so; and
- anything else that is relevant to the particular circumstances of the child.
A Court must still consider any relevant history of family violence, abuse or neglect and any relevant Family Violence Intervention Orders.
In the event the child is an Aboriginal or Torres Strait Islander, the Court must also consider the matters set out in section 60CC(3), namely:
- the child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having support, opportunity and encouragement to connect with and maintain their connection with members of their family, community, culture, country and language;
- to explore the full extent of that culture, consistent with the child’s age, development, and views and develop a positive appreciation of that culture; and
- the likely impact any proposed parenting Order will have on the above right.
Although the amendments made to section 60CC simplify the considerations a Court must make when determining the best interests of a child, they do not provide novel considerations.
Equal Shared Parental Responsibility and Shared Care
Secondly, the presumption of equal shared parental responsibility has been removed and replaced with sections 61DAA and 61DAB. These sections set out when parents or carers must consider other parents or carers in major and non-major decision-making for the child. However, there is no presumption regarding the allocation of parental responsibility.
In turn, section 65DAA has been removed, meaning a Court no longer needs to consider the child spending equal time with each parent or carer if the parents or carers have equal shared parental responsibility. However, a Court must still consider this position should there be an application from a parent or carer for it.
Altering Final Parenting Orders
The amendments solidify the principles established in Rice v Asplund (1979) with the addition of section 65DAAA, which states that a Court must not reconsider a final parenting Order unless there has been a significant change of circumstances and that it is in the best interests of the child for the final parenting Order to be reconsidered.
This section does not prohibit the Court from altering Final Orders if there is an agreement to do so.
Independent Children’s Lawyers
Section 68LA(5AA)-(D) modifies the duties required of an Independent Children’s Lawyer. An Independent Children’s Lawyer is now required to meet with a child and allow them to express any views concerning parenting matters.
An Independent Children’s Lawyer is not required to meet with a child if they are under the age of five, the child does not wish to meet with the Independent Children’s Lawyer, or there are exceptional circumstances, such as where a meeting would expose the child to unmanageable risk or would negatively impacting a child’s wellbeing.
For further information on the changes to the Family Law or to discuss a family law matter, please contact us at 5303 0281 or familylaw@ballaratlawyers.com.au.
The information on this website is general only. It is not legal advice, nor is it intended to be. You should consult a lawyer for individual advice about your particular circumstances.
Liability is limited by a scheme approved under Professional Standards Legislation.
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