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Major Changes to Family Law Legislation Regarding Parenting Matters: May 2024
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 first article we review how the amendments change how parents will be expected to make decisions about children.
Decisions about long term issues for your children
Courts are routinely asked to make orders about how parents will make decisions about major long-term issues. There are a variety of matters which are considered long term issues, and these include matters about:
- healthcare decisions relating to a child, such as which doctors and allied health professionals the child will see, what treatment might be received in relation to diagnosis for a child including whether they should take medication or have an operation;
- education decisions relating to a child, such as whether a child should go to a particular school, kindergarten or daycare, decisions to be made about the child’s curriculum, what learning support or extension work might be needed for the child;
- decisions about religion, such as whether a child should be brought up in a particular faith, whether a child should be taken to church or youth programs associated with a particular faith;
- decisions about where a child should live, such as whether a child should be able to relocate away from the area they are currently living;
- decisions about a child’s name, such as what last names the child has, whether a name should be hyphenated;
- decisions about extracurricular activities, such as whether a child should be enrolled in extra curricular activities and where they should be enrolled and how many practices they are required to attend;
- decisions about serious discipline issues.
The new legislation does not change the existing position in the Family Law Act that separated parents retain parental responsibility, which can be exercised jointly or separately, unless this is varied by a Court Order (section 61C).
Removal of the presumption of equal shared parental responsibility and the implementation of what is in the best interests of a child
Previously there was a presumption that it was in a child’s best interests that there be equal shared parental responsibility where there is no family violence. From 6 May 2024 there is no presumption that equal shared parental responsibility exists. The major reason the government has given as to why it has been removed is because it was commonly misunderstood to create a right to equal time arrangements for children.
You can continue to apply for Court Orders about making decisions in relation to a child, either jointly or apply to have sole responsibility for some or for all these decisions. The court will decide on whether to give sole parental responsibility or joint parental responsibility based on what is in the best interests of a child. Subsection 61D(3) and existing subsection 64B(2) makes it clear the court will still make orders relating to the allocation of parental responsibility, with the power to make orders for “joint decision making on major long-term issues”.
You can of course continue to agree to make joint decisions about a child without it being determined by a court and you may want to record this in a Parenting Plan or a Court Order. The new laws encourage parents who do not have Court Orders to consult about these major long term issues and make decisions in a child’s best interests (section 61CA). However, you are not encouraged or expected to consult where it is not safe to do so.
If a Parenting Plan or Court Order provides for joint decision making on long term issues, you will be required to consult with the other parent on these matters (section 61DAA).
The lack of presumptions and the new best interests’ factors, means now more than ever, each case will be different. Instead of making presumptions about what should or will happen in your circumstances, obtain legal advice so you know 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.