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Since 2006, the law about how the Court determines parenting arrangements for separated families is what arrangements are in a child’s ‘best interests’. The Court is then required to consider ‘primary’ and ‘secondary considerations”, which are to firstly protect the child from harm and secondly to ensure the child has a meaningful relationship with both parents. There are also currently 14 additional considerations that the Court has to look at when considering what is in the best interests of a child.  

Equal Shared Parental Responsibility and Equal Time 

Under the current legislation, there is a presumption that parents have equal shared parental responsibility for their children, which then leads to a pathway of mandatory consideration of equal time. 

The presumption of equal shared parental responsibility is about making major long-term decisions for a child and can be rebutted in certain circumstances (for example, if there is family violence or if equal time is not appropriate for some other reason).   

The consequence of equal shared parental responsibility is that parents have become very focused on equal time consideration rather than what is in a child’s best interests. In practicality, this has led to a narrative that has been more about the entitlement of parents to spend equal time with their children. Parents have also often misunderstood the meaning of equal shared parental responsibility to mean ‘equal time’. 

When the new legislation comes into effect in May 2024, the ‘best interests’ principle will still apply, but there are some key changes to what the Court will need to consider is in the best interests of the child when making parenting Orders. 

The new legislation will focus on what is safe and appropriate for children. It also simplifies the considerations that the Court will need to have regarding what is appropriate and safe rather than starting with a presumption that it is safe. There will be a focus on the safety of the child, the child’s wishes, the parent’s capacity to care for the child and the benefit of the child having a relationship with others (family or important people in their lives) as well as the children’s culture and any Aboriginal background. The Court will look at everything holistically.  

The new legislation also deals with changes to the major long-term decision-making responsibilities of parents for their children (such as non-urgent medical decisions, which school the child attends, what religion the child will practice, and more), which again is governed by what is in the child’s best interests. Where there is a decision that is required to be made jointly, the new legislation requires parents to: 

  • consult each other person with joint responsibility in relation to each such decision, and 
  • make a genuine effort to come to a joint decision. 

However, the amendments specifically provide that there is no requirement to establish that there has been a joint decision before acting on a decision communicated by a person with decision-making responsibility, particularly in relation to schools and medical/mental health practitioners. This could cause parents to take unilateral steps to create (further) conflict, exacerbate litigation and increase Court applications. We will have to wait and see how this works out. 

In relation to day to day decisions, the new legislation specifically states that parents are not required to consult with one another whereas the current legislation is silent about this topic.   

Do the children still have a voice? 

Yes. This is one of the factors in the new legislation that upholds the UN Convention on the Rights of the Child. Article 12 provides the child who is capable of forming his or her own view the right to express those views freely in all matters affecting the child, giving due weight in accordance with the age and maturity of the child. Where there are very young children, this is obviously difficult and not appropriate. Our family law system still provides for the appointment of independent children’s lawyers to represent the best interests of the children, and there are also expert family report writers who we rely on to assist the Court in determining children’s best interests. 

Children are not called to come to Court and be witnesses during Court proceedings. 

What do we expect from these new reforms? 

We are not sure yet what the outcome of the new reforms will be as they are yet to be implemented and interpreted by Judges. Hopefully it will simplify the process for parents and reduce litigation in the future.   

How can we help? 

If you need assistance in relation to your parenting matter, please do not hesitate to contact one of our experienced family lawyers at Neilan Stramandinoli Family Law. 

Suite 2 Ground Floor 11 London Circuit Canberra City

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02 6152 0493