“In the best interests of the child” – changes to the framework for making parenting orders

The Family Law Amendment Bill (“the Bill”) finally passed through both houses of parliament on 19 October 2023 and received royal assent on 6 November 2023. The majority of the changes under the Family Law Amendment Act 2023 will come into effect from 5 May 2024.

The Bill attracted a lot of scrutiny during its consultation stage with no fewer than 316 submissions being made by individual stakeholders. The bill makes important changes to a few different areas of the Family Law Act such as:

• the enforcement of child-related orders,
• the definition of a ‘member of a family’, and
• the obligation of Independent Children’s Lawyers to meet with children.

Arguably the most controversial of the changes is to the framework for how the Court is to decide shared parenting arrangements, and that is what we are going to focus on in this article.

Equal shared parenting responsibility

Since 2006, the procedure for deciding a parenting matter under the Family Law Act has been based on “equal shared parenting responsibility” which means effectively that there has been a requirement to consider equal time with each parent.

The Best Interests of the Child

The amendments in the Bill will change the current framework by:

• Removing the presumption of equal shared parental responsibility.
• Removing the requirement for the Court to consider making orders for the child to spend equal or significant time with both parents after making an order for equal shared parental responsibility.
• Removing the current ‘two tier’ set of considerations for determining what is in a child’s best interests and replacing them with the following seven factors that judges must consider:
  1. what arrangements promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm;
  2. any views expressed by the child;
  3. the developmental, psychological, emotional and cultural needs of the child;
  4. the capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs;
  5. the benefit of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so;
  6. anything else that is relevant to the particular circumstances of the child; and
  7. for an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.

The explanatory memorandum for the Bill states that the purpose of the amendments is ‘to streamline the legislative framework for making parenting orders, including changes to the section which covers the factors to be considered when making parenting arrangements in the best interests of the child.’

Although the focus of the legislative framework has always been to produce orders that are in a child’s best interests, the amendments seek to remedy a concern that the presumption of equal shared responsibility confuses and detracts from the paramount consideration: what is in the child’s best interests.

The potential impact

Many people disagree with the amendments, on the basis that the amendments may inadvertently abolish or at least diminish a child’s right to have a meaningful relationship with both parents. This seems like a counterintuitive step in the context of a scheme which has the primary purpose of meeting the best interests of a child.

Most people, however, would agree that there is no love so unconditional and pure as a parent’s love for their child. It is without a doubt in a child’s best interests to have as much access as possible to a person who would literally give everything for that child. In the majority of cases, it is in a child’s best interests to have as much access as possible to both of their parents.

Why the change?

Sadly, there are circumstances where it is not in a child’s best interests to spend as much time as possible equally with their parents such as instances involving family violence, or significant conflict between the parents. With those circumstances in mind, the amendments seek to provide a balance of considerations while still highlighting the significance of a child’s right to a meaningful relationship with each of their parents.

In summary…

We are hopeful that good will come from the ‘streamlining’ of the parenting arrangements framework. However, there is uncertainty whether the “best interests of our children” will be truly served by these amendments.  We will eagerly be “watching this space”!

Get in touch

Need assistance or guidance on any matter relating to separation, divorce, property settlement or children’s issues? Get in touch with our caring and experienced Family Law Team or call 1800 730 842 to speak with one of our family lawyers in QLD, SA, WA or the NT.