Australian Family Law underwent significant changes, effective 6 May 2024. These changes will impact equal shared parenting matters that are not finalised by this date and future arrangements concerning children. They will not apply to matters where a final hearing has commenced by this date. Bayside Mediation and FDR can help parents navigate these changes.
Parenting Arrangements Post-Separation
Many parents manage to work out their own arrangements post-separation. However, in instances where an agreement can't be reached, parties may seek parenthood orders from the Family Court (Federal Circuit and Family Court of Australia or FCFCOA). These orders address matters such as the time with each parent and deciding on significant, long-term issues.
In children's matters, the Family Court's priority is to always act in the well-being of the child.
Key Changes to How Parenting Orders Are Determined
The Family Law Amendment Act 2023 introduces new criteria for determining what is in the best interests of the child. The presumption of equal collaborative parenting has been removed. This comes from findings that unrepresented parties believed they were required to enter into equal shared care arrangements.
Criteria for Determining What is in the Best Interests of the Child
- Safety of the Child: Consideration of any history of family violence and relevant orders.
- Child's Views: Taking into account the offspring's own perspectives.
- Developmental Needs: Assessing the kid's developmental, psychological, emotional, and cultural needs.
- Parental Capacity: Evaluating each parent's ability to meet the needs of the child.
- Beneficial Relationships: The importance of the child maintaining relationships with parents and other significant individuals (e.g., grandparents, siblings).
- Other Considerations: Any other circumstances that are relevant to the child.
- Cultural Connection: For Aboriginal and/or Torres Strait Islander children, how do the arrangements support their cultural experiences?
Sole vs Equal Shared Parental Responsibility
The law recognizes two main types of parental responsibility arrangements for parents: sole and equal shared parental responsibility. Under the Family Law Act 1975, the court determines which arrangement is in the best interests of the child. Where violence within the family and child protection issues are present, sole parental responsibility may be awarded to one parent. However, with the new changes in the law, there is a focus on promoting equally sharing parental responsibility. This shift has led to more collaboration and information sharing between the family. This also means increased time for children to spend with both parents.
When separated parents are unable to reach an agreement on parental responsibility for the child, they may seek the assistance of family lawyers. The family law court plays a crucial role in resolving disputes and making decisions regarding parental responsibility. Aussie family lawyers work to ensure that the best interests of the child are prioritized in any decisions made. This may include facilitating sharing between the family law. It also ensures that the rights and responsibilities of both parents are upheld in accordance with Australian law.
What Does Presumption Of Equal Shared Parental Responsibility Mean?
Family law, at least here, recognizes the importance of both parents being involved in their children's lives after separation. Equal shared parental responsibility means that both parents are expected to share duties for making major decisions about their children's lives. This includes decisions about schooling, medical treatment, religion, and other important matters. In addition, the law encourages children to spend the same amount of time with each parent, provided it is for the welfare of the child.
Under the law mentioned above, the court orders parents to have balanced duties, even if they do not spend time equally with the child. This means that both parents are equally responsible for the offspring's upbringing, regardless of how much time they spend with the child.
Family violence and child protection are important considerations in family law. The court will always prioritize the safety and well-being of the child. If there are concerns about domestic violence or child abuse, the court limits or even denies shared responsibilities. This ensures that the child's interests are protected above all else. Overall, the recent family law changes in Australia aim to promote cooperation and information sharing within the family. This ensures that both parents are actively involved in their kid's life and well-being.
How is Equal Shared Parental Responsibility Determined in Australian Courts?
Laws determine shared parental responsibility in Australia by considering the best interests of a child. When separated or divorced parents cannot agree on how to make decisions for their child, the court intervenes to ensure equal shared duties is established. This means that both parents are responsible for the upbringing of the child and have an equal say in important decisions. The Australian law encourages parents to equally share responsibilities for the child, including 50-50 time with the parents.
Recent changes in family law have emphasized the importance of children to spend equal time with both parents unless it is not in the minor's best interests. The Family Law Act 1975 dictates that the court must prioritize the safety of the child. Lawyers play a crucial role in advocating for the kid's welfare and ensuring shared duties are established in accordance with the law.
Does Equal Shared Parental Responsibility Mean Equal Time with the Child?
In this country, the law recognizes the importance of bringing children together. However, it does not necessarily mean that separated parents must spend equal amounts of time with the child. According to the law, both parents are required to make decisions regarding the child. While the law encourages parents to have 50-50 responsibility, it does not prescribe a specific division of time. The family law court may intervene in cases where each parent must spend equal time with the child is not deemed suitable. Particularly in cases involving family violence and child protection. The recent family law changes have underscored the importance of information sharing between the family and lawyers, promoting fifty-fifty responsibility and co-operation in family relationships.
Clarification on Joint Decision-Making and Equal Shared Parenting
If there are no Court orders dealing with "parental responsibility," each parent has parental responsibility for their child. If it is safe to do so, parents are encouraged to consult with each other about major long-term issues concerning the child.
The Court can make an order for joint or sole responsibility to decide for major long-term issues or can allocate responsibility between the parents for certain decisions.
When the court mandates joint decision-making about long-term issues, each parent usually must consult with the other and make a genuine effort to reach a joint decision.
Third parties (e.g., schools/doctors) are not required to verify if a decision has been jointly made before acting on it.
In instances where there are safety concerns, the court also considers:
- Any history of violence, abuse, or neglect involving the child or a person caring for the child.
- Any family violence order that applies or has applied to the child or a member of the kid's family.
Scope of Consultation on Non-Major Long-Term Issues
When a child is under the care of a particular person due to a parenthood order or plan, you generally are not required to consult with others who have parental responsibility for immediate, non-major decisions about the child, such as daily activities and needs.
Amending Final Parenting Orders
Under the new law, to modify existing parenting orders, the court must find a significant change in circumstances and that the amendment would serve the best interests. Without these criteria being met, existing orders cannot be altered without mutual agreement.
If you believe that your existing orders are not in the best interest of your child and you wish to review them, Bayside Mediation and FDR will help you discuss and reach an agreement.
Effect on Existing Orders
The new law does not automatically alter existing parenting orders. Those with orders in place should continue to adhere to them until any amendments or new orders are made by the court.
How Bayside Mediation and FDR Mediation Can Assist
These changes reflect a shift in the court's approach to prioritising the needs and safety of children in family law matters. FDR Mediation is an important step in the court’s process, and that is reflected in the fact that FDR mediation is now mandatory for all family law cases. By initiating FDR mediation early in your separation, not only are you complying with the requirements of the Family Law Act. You are also giving yourself every opportunity to resolve your and your ex's issues.
For detailed guidance specific to your situation, please consult us at Bayside Mediation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For more information or to seek assistance, contact Bayside Mediation on 95536491
