By Annalise Valerioti, Paralegal

The law about how a court makes parenting orders has now changed, effective 6 May 2024.

These changes will affect all new parenting matters and those already before the court but not concluded before 6 May 2024.

The Family Law Amendment Act 2023 sets out new laws about:

1. What issues a court must consider when determining what is in the child’s best interests;
2. Who will be responsible for making decisions about long-term issues for a child.
3. When a child will spend time with the parent with whom they will not live with;
4. Whether a concluded parenting case can be re-opened.

What is in the best interests of my child?

Under the amendments, the Court will consider six main factors when deciding what parenting arrangements will be in the best interests of the child. The new factors are:

1. The safety of the child and the safety of each person that cares for the child;
2. The child’s own views;
3. The developmental, psychological, emotional, and cultural needs of the child;
4. The capacity of each person who will be responsible for the child (including their capacity to provide for the child’s developmental, psychological, emotional, and cultural needs);
5. The benefit of the child having a relationship with their parents, and other people of significance (e.g., grandparents and siblings); and
6. Anything that is relevant to the circumstances of the child (including but not limited to if the Court is making orders about an Aboriginal and/or Torres Strait Islander child, the Court will also consider how parenting arrangements will assist the child in experiencing aspects of their culture).

How are we supposed to make decision about long-term issues?

Unless varied by Court orders, parents will retain parental responsibility for their child/children

However, from 6 May 2024, the presumption of equal shared decision-making responsibility will no longer be applied, except in final hearings that have already commenced.

Courts often make Orders about how parents should decide major long-term issues for their child (for example, healthcare, religion, and education.)

The Court can order that decisions are made jointly or that one parent has sole responsibility for some or all of these decisions and the Court will make these orders based on what is in the best interests of the child.

If the Court makes an order for joint decision making, you will be required to make a genuine effort to consult with your co-parent to come to a joint decision. However, where you and your co-parent have jointly agreed on parenting arrangements, you can formalise this agreement via either a parenting plan or by applying to court for Consent Orders.

The amendments encourage parents to consult with each for major long-term issues in relation to the child and make decisions in the child’s best interests.

When can I spend time with my children?

Many parents believe that they are entitled to spend equal time with their child. This has never been the case under the Family Law Act 1975. The court was required to consider equal time in certain circumstances under the previous provisions. The court is no longer required to start from the presumption that equal time with each parent should be ordered. Each case is to be decided on the merits of what appears to be the best interests of the child.

Will the new laws change my existing parenting orders?

Existing parenting Orders will not be automatically changed. Parents should continue to follow these Orders.

Re-Opening a Parenting Matter:

Where a final parenting order is already in place, the court must not reconsider the final parenting order unless:

• the court has considered whether there has been a significant change of circumstances since the final parenting order was made, and
• the court is satisfied that it is in the best interests of the child for the final parenting order to be reconsidered.

The Mills Oakley Family Law team have vast experience in dealing with parenting matters including parental responsibility, time spent with each parent and living arrangements for children. If you need advice in dealing with parenting orders any other Family Law matter, please do not hesitate to contact us.