by georgia spencer & sheree orbell, solicitors
Australian families are about to face some significant shifts in family law that could impact how parents approach their responsibilities and parenting arrangements. The upcoming changes, set to be implemented with the Family Law Amendment Act 2023, aim to reshape the framework surrounding parental responsibilities.
For many parents, understanding these changes is crucial, especially if you have an ongoing parenting matter in court or if you’re in the process of determining the best arrangements for your child.
Georgia Spencer and Sheree Orbell, Solicitors at Orbell Family Lawyers (located in Erina) provide an overview of the major changes set to come into place on 6 May 2024.
The upcoming amendments aim to prioritise the “best interests of the child”, ushering in a new framework for long-term decision–making for children of separated parents. Effective from 6 May 2024, these changes mark a significant departure from existing practices and will impact both new and ongoing cases, except for those already finalised before this date.
This article is designed to serve as a guide, providing you with a clear understanding of the implications of these new laws, their application, and their significance for you.
Putting Kids First – Best Interests of the Child
The heart of the reform lies in prioritising the best interests of the child. Although this has been a focus of the family law system for some time, the reform aims to streamline the current list of fifteen factors to be considered. The reform will simplify this list to instead consider six factors. These include:
- the safety of the child and people who care for the child (including consideration of any history of family violence and family violence orders);
- the child’s views;
- the developmental, psychological, emotional and cultural needs of the child (including any kinships and how these tie into the best interests 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 (e.g. grandparents, siblings, step-parents), and
- anything else that is relevant to the particular circumstances of the child.
Scrapping the Problematic ‘Shared Parental Responsibility’
For many years, there has been a presumption of “shared parental responsibility,” where both parents are required to jointly decide on their child’s long–term welfare and health, including areas like healthcare, education, and religion. Unfortunately, this has led to confusion, with many parents (and even some practitioners) mistakenly assuming that ‘equal shared parental responsibility’ means ‘equal shared care’ or ‘equal time’.
Come May 2024, this will change, as the presumption will no longer apply. Once the reform comes into effect, parents will be encouraged to talk about things like the child’s long-term care, welfare, and development; however, where it is not appropriate to do so, there is no legal requirement binding you to consult with the other parent in this regard (unless there are court orders in place telling you otherwise).
The reform seeks to reduce tension between co–parents moving forward, which, ultimately, will be in the best interests of the child.
Changing Final Parenting Orders
From May 2024, the Court will only consider requests to change existing parenting orders if there has been a “significant change in circumstances” since the orders were made.
What this means for parents with existing orders in place is that if you wish to have these orders changed, you must show the court: there has been a significant change of circumstances; and that it is no longer in the best interests of the child for the current Orders to remain in place.
The central focus remains on safeguarding the child’s wellbeing without unnecessary legal complexities and ensuring the child’s best interests are being met.
Will the new laws affect existing parenting Orders?
The short answer is no. If you and your former partner already have existing parenting Orders in place, you are still required to comply with these Orders.
Liability limited by a scheme approved under Professional Standards Legislation. The information contained in this article is provided for information purposes only and should not be construed as legal advice.
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