The child comes first: What the new family law regime means for parenting arrangements

6 May 2024

Court-enforced parenting arrangements will be determined by a new set of rules, as major changes to the Family Law Act come into effect on 6 May.

The headline-grabbing amendment to the Family Law Act has been the removal of the presumption of equal shared parental responsibility. Until now, the Court has had to start from the presumption that parents should have an equal share of the responsibility for their children.

But this has led to misunderstandings that have resulted in parties entering into negotiations, and sometimes time-consuming, expensive and angst-ridden litigation, based on misconceptions about what their parental rights are.

In the course of developing major reforms to the Family Law Act, Parliament found that there was a mistaken belief among a significant section of the community that parents were entitled to equal time with their children, which has led to parties prolonging litigation, or entering into unsafe arrangements, because of a parent’s presumed entitlement that they should get the same amount of time with their children as the other parent.

The law has now been changed to address this misunderstanding and make it absolutely clear that the Court must exclusively consider the child’s best interests when deciding on parenting arrangements.

It is somewhat understandable that the concept of “equal shared parental responsibility” could be conflated with “equal time”, which is why the why the term “equal” has been abolished, and instead, the Court is explicitly directed to assess what serves the child’s best interests.

To be clear, the Court is still obliged to take into account the benefit of a child having meaningful relationships with both parents, but only if it is satisfied that it is safe for the child to do so.

How will the Court assess what’s in the child’s best interests?

The Court is now required to consider six general factors when determining what is in a child’s best interest. They are:

  1. What arrangements promote the safety of the child and each person who has care of the child (whether or not this person has parental responsibility for the child).
  2. Any views expressed by the child.
  3. The developmental, psychological, emotional and cultural needs of the child.
  4. The capacity of parents to provide for the child’s developmental, psychological, emotional and cultural needs.
  5. The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so.
  6. Anything else that is relevant to the particular circumstances of the child.

If the child is of Aboriginal or Torres Strait Islander heritage, the Court must also consider two additional factors:

  • The child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the opportunity to connect with, and maintain their connection with, their family, community, culture, country and language; and
  • The likely impact any proposed parenting order under this Part will have on that right.

These considerations have been designed to emphasise that parenting arrangements must exclusively serve the best interests of the child.

What type of child safety risks will a court assess?

The Honourable Justice Suzanne Christie recently described a range of risks that the court will need to assess when deciding on parenting arrangements that promote the safety of the child. These risks include:

  • Whether the home environment exposes children to family violence;
  • Whether a parent is regularly incapacitated due to alcohol or drug use;
  • Whether a parent’s conduct amounts to neglect;
  • Whether the parent’s conduct amounts to child abuse;
  • Whether the parent’s mental health significantly compromises their parenting capacity.

Making decisions on a child’s future

The new laws clarify when parents are expected to make joint decisions on issues impacting their children, and when it is sufficient for one parent to make decisions.

Under the amended Act, parents who share time with their children do not have to make joint decisions on issues that are not considered long-term issues.

This amendment is designed to resolve long-running tensions as to what a parent can and cannot do while a child is in their care.

For long-term issues, joint decision-making remains the preferred approach, and the Court can make orders that parents need to make joint decisions on long-term issues relating to their children.

Long-term issues can relate to:

  • The child’s current and future education;
  • The child’s religious and cultural upbringing;
  • The child’s health; The child’s name;
  • Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

However, the Court can also make an order that one parent has sole responsibility for making decisions about long-term issues, in circumstances where the Court determines that there is no realistic prospect of parental cooperation in making long-term decisions about their child, or if joint-decision making is deemed against the best interests of the child.

Can parenting orders be changed?

The amended Family Law Act codifies an important case (Rice v Apslund), which provides that a Court can only consider changing a parenting order if there has been a significant change of circumstances since the final parenting order was made, and is satisfied that re-considering the parenting order is in the best interests of the child.

The Act sets a high bar for circumstances that can trigger a change in parenting orders, as the Court will lean heavily on the premise that continued litigation is generally detrimental to the interests of children.

In essence, any new evidence presented would need to be substantial and compelling for a Court to reconsider parenting orders. Even if an applicant can establish that there has been a significant change in circumstances since the final parenting order was made, the Court would still need to then be satisfied that changing existing orders would be in the best interests of the child.

What if parents don’t comply with parenting orders?

The Court has several tools at its disposal to deal with parents who fail to comply with parenting orders, depending on how serious the non-compliance is.

If a parent contravenes a parenting order by spending more time with a child than is prescribed by the parenting order, the Court can make an order for the other parent to spend additional “make-up” time with the child on a temporary basis. An example might be that a parent withholds their child from the other parent because of safety concerns. The Court can then order the child to spend “make-up” time with the other parent if and when they are satisfied the safety risk no longer exists.

In the event of a contravention, the Court can also vary or suspend a parenting order, or order a parent to attend a parenting program.

If the court finds on the balance of probabilities that the respondent contravened the child-related order without having a reasonable excuse, the Court can order the parent to enter into a bond, or impose a fine if the parent fails to enter into a bond.

If the court finds beyond reasonable doubt that the parent contravened a parenting order without reasonable excuse, the Court can impose a fine or even a prison sentence.

A reasonable excuse for contravening a parenting order can include:

  • The parent did not understand their obligations under the order;
  • The person reasonably believed that contravening the order was necessary to protect the health and safety of a child or any other person.

The upshot of these changes is that it will be easier to defend the contravention of an order in circumstances involving family violence.

The Court also now has more power to make temporary parenting orders designed to rebuild relationships between child and parent.

Can children have a say in parenting arrangements?

The Court will need to consider the views of the child, which will generally be expressed via an Independent Children’s Lawyer, when appointed by the Court.

Under the reforms, an Independent Children’s Lawyer (ICL) will be required to meet with a child (aged 5 and over) and provide them with an opportunity to express their views.

This practice reflects the principle that children have a right to have a say about decisions that affect them.

An ICL does not have to meet with a child if the child does not wish to meet with or express a view to an ICL, or if there are “exceptional circumstances” that present a significant risk of physical or psychological harm if an ICL were to meet with the child.

The ICL‘s job is to present an evidence-based opinion about what is best for the child. In addition to interviewing the child, the ICL may also gather and utilise additional evidence such as Child Impact Reports or Family Reports.

The ICL does not take sides. Their job is to provide an impartial opinion, based on the evidence gathered, about what is in a child’s best interests. The Court will take this opinion into account but is not bound by the ICL’s views when making orders.

The reforms also remove the requirement that ICLs can only be appointed in Hague Convention proceedings under exceptional circumstances. The Hague Convention relates to international child abduction. In matters involving the allegation of a parent taking a child from their home country or retaining the child in another country without authorisation, the Court can appoint an ICL when the Court considers it is in the best interests of the child to do so.

How will the new laws affect parenting arrangements?

It is difficult to predict how significantly this will change parenting arrangements in the future, but it is likely to lead to arrangements that are more “bespoke”, that is they will be specifically tailored to the individual needs and circumstances of the children, which may result in greater variations in the allocation of parental responsibility than we have seen in the past.

The Federal Circuit and Family Court of Australia has comprehensive resources about the changes to the Family Law Act.

If you need legal assistance, the Law Society’s “See a Lawyer” referral service can help people find a suitable family lawyer.

The Legal Services Commission provides free legal advice, Independent Children’s Lawyers, and in some family law cases, legal aid.