More pages in this section
Major Changes to Family Law Legislation: Time & Care Arrangements
On 6 May 2024 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 and significant care arrangements;
- the grounds for making changes to final Parenting Orders; and
- the role of the Independent Children's Lawyer.
In this third article we review how the amendments change how a court will determine who the child should live with and what care arrangement is appropriate.
What do the new laws say about spending time with children – the end of equal time?
From 6 May 2024, there is no longer a requirement that a court must consider whether an equal time arrangement or substantial and significant time arrangement is in a child’s best interests or reasonably practicable. Prior to 6 May 2024, if there was a presumption of equal shared parental responsibility (which arose where there was no family violence), there was a requirement that a court must consider:-
- firstly, whether an equal time arrangement was in a child’s best interests and reasonably practicable; and
- then if that was not an appropriate arrangement, whether a substantial and significant time arrangement was in a child’s best interests and reasonably practicable.
Many people understood that this meant parents are entitled to spend equal time with their child but this was never the position under Australian law. There has only ever been a requirement that the court must consider those arrangements in particular circumstances. You still needed to be able to show that the proposed arrangement was in a child’s best interests and reasonably practicable.
An equal time arrangement has commonly involved children spending say week about with each parent or an equal time around one parent’s roster, such as a “lifestyle roster”.
A substantial and significant time arrangement has a child live with one parent and commonly spend 4 or 5 nights per fortnight with the other parent.
Following the changes there is no consideration the court must consider equal time care arrangements or substantial and significant time care arrangements. The court must only consider whether a particular parenting arrangement is in a child’s best interests. See our article about how a court will determine what is in a child’s best interests. There is nothing to stop a court determining that such an arrangement is appropriate.
The new legislation does not mean that you cannot have an equal time arrangement or a substantial and significant time arrangement. Decisions about how much time a child spends with each of their parents will depend on what is in the best interests of that particular child, determined according to the new section 60CC. The requirement that you follow a hierarchy of considerations and consider whether an arrangement is reasonably practicable will no longer exist.
You can of course continue to agree to have an equal time arrangement for a child or a substantial and significant time arrangement without it being determined by a court and you may want to record this in a Parenting Plan or a Court Order.
The changes do not mean that there cannot be an equal time arrangement ordered by the court, but when considering what time arrangements, there is no requirement that you consider an equal time arrangement first. You instead must simply be able to demonstrate that such an arrangement will be in a child’s best interests more than another arrangement.
These changes remove a hierarchy of considerations which mean that now, more than ever, each case will be different. Do not make presumptions about what should or will happen in your case, 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.