Changes to the Family Law Act for parenting matters

The key changes broadly include:

1. The removal of the presumption of equal shared parental responsibility.
2. Changes to the definition of what is considered to be “in the best interests of the child”.
3. Clarification of the role of an Independent Children’s Lawyer.

Removal of equal shared parental responsibility

Under the new amendments, the starting point of shared parental responsibility under section 61DA will no longer be that both parents have equal rights. From 6 May 2024 the Court will be more focused on allocating responsibility based on what is “in the child’s best interests”.

The Court can still decide that parents should have equal responsibility for the children, which is likely to be the outcome in most cases. However, the removal of the presumption of equal responsibility will make it easier for the Court to allocate responsibility to only one parent where it would not be appropriate for the responsibility to be shared, such as in situations of family violence.

Best interests of the child

The best interests of the child is still the paramount consideration when determining arrangements/decisions for the child. However, from 6 May 2024, the specific considerations that the Court must take into account in determining what is in the child’s best interests have been simplified and streamlined. It is unlikely to change the outcomes, but is intended to make the process easier for parties to understand.

The new amendments will see the removal of several primary and additional considerations which the Court was required to considerand replacing these with six general considerations, namely:

1. Promotion of the safety of the child and consideration of the people responsible for care of the child.  
2. Any views expressed by the child.
3. The needs of the child – which includes his or her developmental, psychological, emotional or cultural needs.
4. The capacity for each person who has or is to have parental responsibility to meet the child’s needs.
5. The benefit to the child of being able to have a meaningful relationship with his or her parents and other people significant to the child.
6. Any other factor which is relevant to the circumstances of the child.

When considering these factors, the Court will have discretion as to what is in the best interest of the child, in each circumstance.

If you have separated from your spouse or partner and you are working through parenting issues or arrangements, please telephone our family law team on 9870 9870 and one of our experienced team will be more than happy to provide you with valuable advice and assistance when dealing with these difficult issues.

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