Article written by Michelle McDermott
In a significant move, on 19 October 2023, the Australian Parliament passed the Family Law Amendment Bill, marking a pivotal moment in the realm of family law. Spearheading the reform are amendments to Part VII of the Family Law Act, heralding the most substantial changes to parenting laws since their inception in 2006. As we delve into this transformative legal landscape, we’ll be exploring what the amendments mean for separating couples, and how Pippa Colman Family Law, your trusted Sunshine Coast Family Lawyers, can guide you through the evolving legal terrain.
The Essence of the Amendments:
The objectives of Part VII remain twofold: to prioritise the best interests of children, ensuring their safety, and to align with the Convention on the Rights of the Child established in 1989. But what does this mean for couples navigating the complexities of separation?
Equal Shared Parental Responsibility: A Shift in Perspective
What parental responsibility means is the responsibility that parents have for making major long-term decisions about the welfare and development of their child/children – eg, the school they attend, significant medical decisions, their name and religious or cultural upbringing.
The problem with the presumption of equal shared parental responsibility has been that it is regularly misunderstood by parents (and some lawyers!) as meaning that parents also have a right to spend equal time with children. What the current law actually says is that where a Court makes an order for equal shared parental responsibility, it must consider making an order for equal time, if it is reasonably practicable and in the best interests of a child to do so. It is not an automatic right.
What the law will say from 6 May 2024 is that any allocation of parental responsibility for major long-term decisions is to be based on what is in the child’s best interests. A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Consultation and Decision-Making: A Collaborative Approach
If a Court makes an order for joint decision-making, then the parties, if it is safe to do so and subject to any court orders, will be required to consult with the other parent in relation to each such decision, and make a genuine effort to come to a joint decision.
The amendments also make it clear that parents are not required to consult with each other regarding decisions that are not major long-term issues, when a child is spending time with that parent, for example what the child eats or wears.
Key Factors in Determining a Child’s Best Interests:
Come 6 May 2024, courts will consider various factors when deciding what is in a child’s best interests, including:
- Promoting the safety of the child and caregivers, considering any history of family violence.
- The child’s expressed views.
- Developmental, psychological, emotional, and cultural needs.
- Parental capacity to meet the child’s needs.
- The benefits of maintaining relationships with significant individuals, ensuring safety.
- Any other relevant circumstances unique to the child.
- A child’s right to embrace their Aboriginal or Torres Strait Islander culture.
Contrary to a one-size-fits-all approach, the amount of time a child spends with each parent will be determined by the specific circumstances of each case.
With the new laws taking effect from 6 May 2024 (excluding ongoing court proceedings), it’s essential for couples navigating separation to stay informed. Whether you’re in the midst of negotiations or court proceedings, consulting with Pippa Colman Family Law, your trusted Sunshine Coast Family Lawyers, can provide invaluable insights tailored to your unique case. Embrace the changes with knowledge and guidance, ensuring the best possible outcomes for your family.