Changes to Family Law Act 1975: Impacts on Parenting Arrangements

On 6 May 2024, amendments to the Family Law Act commenced. These amendments make significant changes to how decisions are made about parenting arrangements for children.

The amendments have removed the shared parenting provisions from the Family Law Act that had been introduced in 2006 to promote and facilitate shared care for children.

Part VII of the Family Law Act no longer contains:

• the presumption that parents/caregivers must share parental responsibility except if there has been domestic and family violence
• the presumptions requiring the Court to consider a child spending equal time or substantial and significant time with a parent/caregiver
• provisions that require the Court to consider arrangements that ensures a child has a meaningful relationship with both parents/caregivers, and
• provisions that require the Court to consider the issues of ‘practical difficulty’ of a child spending time with a parent/caregiver. This usually relates to what are often called ‘relocation cases’ – where one parent/caregiver wishes to move away from the other and this may result in a reduction of time due to distance or other ‘practical difficulties’.

Changes

How the “Best Interests” of a child are considered

The previous structure of more than 20 ‘primary’ and ‘additional’ considerations has been replaced with six general considerations.

These focus on:

• a child’s safety and the safety of a person that is caring for a child
• views that a child might express
• developmental, age-appropriate, and cultural needs, and
• the capacity of each parent or caregiver to meet the relevant needs of a child.

Special considerations are included for Aboriginal and Torres Strait Islander children to support their cultural connections and heritage.

How Parental Responsibility and Time for a child is determined

The presumption of equal shared parental responsibility has been removed.

Consequently, the legislative pathway for a child to spend time with a parent or caregiver (which was dependant on certain presumptions) has also been removed. The Court is no longer automatically required to consider if a child should spend equal time or substantial and significant time with a parent.
Instead, parenting arrangements can now allocate decision-making responsibilities for a child between parents/caregivers on a joint or sole basis. This means that some decisions may need to be made jointly by parents/caregivers or one parent/caregiver may have sole authority to make certain decisions for a child. As the decisions need to be made on what is in the child’s best interest, this will vary from case to case.

The amendments also clarify that joint decision-making requires genuine consultation between parties. However, in circumstances where there has been domestic and family violence, it is likely that these issues will play a major role in determining whether sole or joint parental responsibility is allocated.

Revisiting Final Parenting Orders

The amendments now provide for a codified legislative pathway for Courts to consider applications to vary final parenting orders. Prior to the amendments, the Court relied on a long-standing position set out in case law to determine whether parenting orders should be varied.

Parenting orders are often agreed to when a child is young. These orders may not necessarily continue to be appropriate as a child gets older or circumstances change. The amendments recognise that these arrangements may need to be revisited, particularly where an issue has emerged that was not foreseeable at the time orders were made or agreed to.

The codification of these principles will assist parents/caregivers to understand when it is appropriate for an application to revisit final parenting orders should be made.

Enforcement of Parenting Orders

The amendments simplify and clarify how parenting orders are in force.

This includes guidelines on contraventions and what amounts to a ‘reasonable excuse’ for not complying with parenting orders. The Court’s power to enforce make up time, to vary orders, or impose penalties have also been bolstered.

Information sharing between the Court and statutory authorities

These amendments aim to improve information sharing between the family law courts, State and Territory courts (who deal with matters domestic and family violence intervention and child protection matters), and child and family welfare agencies that are also State/Territory based.

The inclusion of new information sharing orders will provide a consistent and uniform approach to the sharing of information about the safety of families and any interventions that have occurred outside of the family law courts. It will enable family law courts to have real-time information about domestic and family violence protection/intervention orders, domestic and family violence related criminal proceedings, and child protection information.

This will enable Courts to have relevant information so that the prioritising the safety of all parties in family law matter proceedings can be considered. This is particularly important if there are concerns or allegations of child abuse, neglect, or violence as the Court now needs for focus on the safety of a child and members of its family.

Impact on Existing Parenting Arrangements

For families with existing parenting orders or arrangements, there is likely to be little initial impact. Orders relating to parental responsibility or equal time that have already been determined or agreed will not change. The change in legislation is not designed to open the floodgates to litigation to revisit these matters.

However, the amendments to the Act confirm that:

• the safety of a child and their parent/caregiver is a paramount consideration when determining parenting orders
• it may not be appropriate for both parents/caregivers to have an equal say in how decisions need to be made for a child, and
• the Court will consider an application to change parenting arrangements only when:
  • there has been significant changes to circumstances since the orders/arrangements were initially made, and
  • it is in the best interests of a child to make a change the parenting orders/arrangements.

Helping clients take control of their circumstances, Thynne + Macartney’s team has the experience to help understand your options, know your rights and work towards the best outcome for you and your family in your circumstances.

Thynne + Macartney’s Family Law lawyers Nichola di Muzio and Andrew McCormack are Queensland Law Society Accredited Specialists in Family Law. Accredited Specialists are lawyers who have successfully completed an advanced peer-reviewed assessment program specific to their area of expertise, demonstrating their high level of knowledge and skills in that area.

Both Nichola and Andrew are Nationally Accredited Mediators in Family Law and registered with the Mediator Standards Board. They are qualified as Collaborative Lawyers and members of the Queensland Association of Collaborative Practitioners.