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Major Changes to Family Law Legislation: Best Interests of a Child
On 6 May 2024 a number of amendments made to the Family Law Act in November 2023 will commence for all children and families. These amendments will change the way the Court approaches parenting matters. These new legal provisions are some of the most significant changes in the last few decades and will particularly impact those that do not have final court orders in place as they apply to all families immediately, including those in the court system.
Some of the major changes include:
- removing the presumption of equal shared parental responsibility setting out how parents will be expected to make decisions about children;
- a new definition of what the court must consider when determining what is in 'the best interests of the child';
- removing the requirement that the courts must consider either equal time or substantial time and significant care arrangements;
- the grounds for making changes to final Parenting Orders; and
- the role of the Independent Children's lawyer.
In this second article we review how the amendments change how you determine what is in the best interests of a child.
How does the Court determine what is in the best interests of a child?
The new section 60CC sets out a simplified list of six factors which need to be considered when determining whether a particular proposal is in the best interests of a child. These factors are:-
- the safety of the child and people who care for the child (including any history of family violence or family violence orders);
- the child's views;
- the development, psychological, emotional and cultural needs of the child;
- the capacity of each person who will be responsible for the child to provide for the child's developmental, psychological, emotional and cultural needs;
- the benefit to the child of having a relationship with their parents, and other people who are significant to them (eg grandparents and siblings); and
- anything else which is relevant to the particular circumstances of the child.
If a court is making orders about an Aboriginal and/or Torres Strait Islander child, there is an additional requirement that the court will also give consideration to how the parenting arrangements will help that child to experience their Aboriginal and Torres Strait Islander culture.
Previously the best interests' factors had two primary factors and then fourteen additional factors. One of the primary factors was a requirement to consider what would facilitate a meaningful relationship between a child and their parent. This is no longer a primary consideration, it is just one of the six factors which need to be considered.
Previously family violence was considered as a primary factor and then considered as part of the additional factors. This issue remains prominent in the new legislation with a new focus on the safety of both the child and for people who are caring for the child. There is a new subsection 60CC(2A) which highlights the relevance of family violence orders and past violence, abuse and neglect in determining future parenting arrangements.
These changes remove the hierarchy of considerations which means that now, more than ever, each case will be different. Do not make presumptions about what should or will happen in your case based on what you think or has happened for other people, each case will be different and require careful consideration of these new best interests' factors. It is critical you obtain legal advice from family law experts as to where you stand.
Contact our office to make an appointment with one of our solicitors to discuss your circumstances and obtain advice on your situation on (07) 4963 2000 or through our online contact form below.