Trying to determine how a child should spend time with each of their parents can be a complex and nuanced task. If parties cannot agree to a parenting plan themselves, the court’s intervention may be required.
The current legislation
Section 61DA of the Family Law Act (FLA) states that when a court is making a parenting order, the guiding presumption is that it is in the best interests of the child that parents have equal shared parental responsibility. Parental responsibility refers to a parent’s role in making major decisions in their child’s life such as those relating to education, health and travel.
This is not to be confused with s65DAA of the FLA which refers to giving parents a right to equal time with their children. This must be considered if equal shared parental responsibility is granted, but only if it is reasonably practicable to do so.
These provisions are similarly worded and can easily create confusion. Not to mention the effect on negotiations between parents if there are misconceptions about how much time they are entitled to with their child.
A new overhaul to the FLA has recognised these issues and simplifies this process making it easier for parents to understand.
The new legislation- Family Law Amendment Act 2023
The Family Law Amendment Act 2023 (The amendment) has passed and is set to take effect on 6 May 2024. The changes include:
- Repealing the presumption of equal shared parental responsibility; and
- Ensuring that the best interests of the child is the paramount consideration of a parenting decision.
How does a court determine what is in the best interests of a child- new section 60CC factors
The way a court determines what is in the best interests of a child involves consideration of a lengthy list of factors in s60CC of the FLA. These factors are broken up into ‘primary considerations’ and ‘additional considerations’ with the court being required to give more weight to some factors over others.
The amendment condenses this list to six core factors, and judges will not have to preference certain factors over others:
- Promoting the safety (including safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child;
- Any views expressed by the child;
- The developmental, psychological, emotional, and cultural needs of the child;
- The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring;
- The benefit to the child of being able to have a relationship with both parents and other significant people, where it is safe to do so; and
- Anything else that is relevant to the child.
There are two further factors to consider if a child is of Aboriginal or Torres Strait Islander heritage:
- The right to enjoy their 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 will have on that right.
The flexible and non-exhaustive nature of these factors will allow judges to apply the law on a case-by-case basis to determine the best outcome for each individual child.