As of 6 May 2024, reforms passed in the Family Law Amendment Act 2023 (“the amendments”) came into effect. These reforms made significant amendments to the way in which the Federal Circuit and Family Court of Australia (“the Court”) decides parenting matters under the Family Law Act 1975 (“the Act”). The most significant changes include: • Changes to the considerations that the Court takes into account when deciding what order is in a child’s best interests; • The abolition of the presumption of equal shared parental responsibility and the introduction of joint or sole decision-making; and • The removal of the requirement for the Court to consider equal-time arrangements or substantial and significant time arrangements when an order is made for equal shared parental responsibility (as it then was). Determination of the best interests of children When making a determination in a parenting matter, the Court must have regard to the best interests of the child as the paramount consideration under section 60CA of the Act. This is known as the ‘paramountcy principle’ and this has not changed as a result of the amendments. That being said, the considerations that the Court is required to take into account when determining what orders are in a child’s best interests have been amended. Previously, under the old section 60CC, there were two “primary considerations” and thirteen “additional considerations” for the Court to take into account. With the new amendments, this list has been reduced to six “general considerations”. The new considerations for the Court are as follows: 1. What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a 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 each person who has or is proposed to have parental responsibility for the child 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; and 6. Anything else that is relevant to the particular circumstances of the child. Where a child is of Aboriginal or Torres Strait Island descent, the following considerations must also be taken into account by the Court: 1. The child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to: a. connect and maintain connection with, family, community, culture, country and language; b. explore the full extent of that culture; and c. develop a positive appreciation of that culture. 2. The likely impact any proposed parenting order will have on that right. Removal of the presumption of equal shared parental responsibility Another major change under the amendments is the abolition of the presumption of equal shared parental responsibility. This means that the Court is no longer required to presume that it is in the best interests of a child for both parents to make joint decisions in relation to major long-term issues. Major long-term issues include schooling, religion, health, name changes and significant changes to living arrangements. Now, the Court must instead first consider whether it is actually in the best interests of a child for both parents to make joint decisions or if sole decision-making would be more beneficial, based on the particular circumstances of each case. All reference to “equal shared parental responsibility” has been removed from the Act. Instead, the Court now makes parenting orders as to “joint decision-making” or “sole decision-making” under section 61D(3). Despite the removal of the presumption of equal shared parental responsibility, the amendments do not affect the pre-existing position in the Act that each parent, once separated, still retains parental responsibility (which can be exercised jointly or solely) unless varied by Court Order. Under section 61CA, parents are in fact encouraged to consult each other regarding major long-term issues in relation to their children, having regard to the best interests of their children as the paramount consideration. Removal of the requirement to consider an equal time or a substantial and significant time arrangement The amendments have also resulted in the repeal of the previous section 65DAA of the Act. This section required the Court, if an order for equal shared parental responsibility was made, to first consider whether an equal-time arrangement should be ordered, and if not, whether a substantial and significant time arrangement should be instituted. The removal of this requirement to consider these arrangements does not preclude the Court, under the amendments, from making orders containing these arrangements, provided that the proposed arrangement is in the best interests of the subject children. Other changes There are a number of other changes to various sections of the Act as a result of the amendments. These include: • Codification of the test enunciated in Rice v Asplund (1979) FLC 90-725 in relation to reopening proceedings once final parenting orders are made. • The imposition of a requirement upon Independent Children’s Lawyers to meet with children and provide them with an opportunity to express a view regarding possible parenting arrangements. This does not apply if the child is under five years of age, or the child does not wish to meet with the Independent Children’s Lawyer. There are other exceptions to this requirement, including where it would expose the child to a risk of physical or psychological harm that cannot be managed. • Courts now have the ability to impose “harmful proceedings orders” where the Court has reasonable grounds to believe that further proceedings would be harmful to the respondent. • Furthermore, under the Family Law Amendment (Information Sharing) Act 2023, the Court now has enhanced abilities to access information held by State child-welfare agencies and police in relation to child abuse, neglect and family violence. Learn more about the amendments Should you require any assistance or clarification about how these amendments may impact you or your family law matter, we welcome you to make a confidential enquiry with our team of family law experts.