Recent Change in how the Court determines the Best Interest of the Child
On the 6th of November 2023 the Family Law Amendment Bill 2023, which proposed some significant changes to the Family Law Act 1975 (“the Act”), received royal assent. Most of the amendments relate to parenting cases and will apply from the 6th of May 2024.
The changes that will have the greatest impact in parenting cases are the amendment of Section 60CC of the Act, the removal of sections 61DA and 65DAA of the Act, and the addition of section 65DAAA of the Act.
The Amendment of Section 60CC – Considerations in Determining the Best Interests of a Child
Prior to the Amendment Bill under section 60CC of the Act there were 16 considerations the Court needed to consider when determining what is in the best interests of a child. Two of those were primary considerations being the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence. The other 14 considerations were considered ‘additional’ and were not always applicable to every family, however the Court was still required to reflect on them.
The amendment of section 60CC now simplifies the factors to be considered by a Court. A Court must now only reflect upon 6 factors when determining what is in the best interests of a child.
Those factors are:
- What arrangements would promote the safety of the child and each person who has care of the child;
- The views expressed by the child;
- The developmental, psychological, emotional and cultural needs of the child;
- The capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- The benefit to the child of maintaining a relationship with each parent/carer and other people of significance to the child where it is safe to do so; and
- Anything else that is relevant to the particular circumstances of the child.
The Amendment Bill also requires the Court to consider any history of family violence, abuse or neglect involving the child or a carer of the child as well as whether there are or have been any family violence orders when reflecting on the 6 new considerations.
These amendments aim to simplify the application of the legislative process the Courts are required to go through to determine what is in the child’s best interests.
The Removal of Section 61DA – The Presumption of Equal Shared Parental Responsibility
Prior to the Amendment Bill under section 61DA there was a presumption that, if in the best interests of the child, both parents have equal shared parental responsibility.
Equal shared parental responsibility refers to the major decision-making for the child, for example, schooling, religion and medical decisions.
Historically, there have been two instances when the presumption could be rebutted:
- Where there is evidence, or reasonable grounds to believe, that a parent or any other person with whom the child lives has subjected or exposed the child to family violence; and/or
- If a parent was able to provide evidence to suggest equal shared parental responsibility was not in the child’s best interests.
This meant that any parent seeking the sole responsibility to make decisions about their child was faced with the burden of producing evidence to support their position.
The Amendment Bill removes this section to avoid the confusion around the presumption of equal shared parental responsibility and the burden that a parent faces in challenging the presumption. The presumption of equal shared parental responsibility is now replaced with sections 61DAA and 61DAB.
Section 61DAA sets out that if a parenting order provides for specific people to have joint decision-making in relation to all or specified major long-term issues relating to their child, each of those people must consult the other in relation to the decision and make a genuine effort to come to a joint decision.
Section 61DAB sets out that if a parenting order provides for specific people to have joint decision-making and if a child is spending time with one of those people at a particular time under a parenting order, they are not required to consult with the other person about decisions that are not considered major decisions whilst the child is in their care.
The removal of the presumption means that each parent will now need to produce evidence supporting their position in relation to joint decision making if there is a dispute.
The Removal of Section 65DAA – Consideration of Equal Spending Time Arrangements or Significant and Substantial Spending Time Arrangements
Prior to the Amendment Bill, under section 65DAA of the Act, where there was a parenting order providing for equal shared parental responsibility for the child, the Court was required to give consideration to the child spending equal time with each parent. Where the Court did not find that equal time was in the best interests of the child, the Court was required to consider the child spending significant and substantial time with each parent.
The removal of section 65DAA means the Court is no longer required to consider an equal shared time arrangement for children unless a parent is seeking one.
This amendment simplifies the process as the Court will only need to consider the positions submitted by each parent and then decide on what living arrangements are reasonable, practical and in the best interests of the child.
The Addition of Section 65DAAA – Reconsideration of Final Parenting Orders
The Amendment Bill has introduced legislation relating to varying an existing parenting order.
In the past, the principle arising from the case of Rice v Asplund has been relied upon where final parenting orders already exists. Put simply, the case of Rice v Asplund provided that in the absence of agreement, a significant change in circumstances needed to be established in order to vary existing final parenting orders.
Section 65DAAA now confirms as law that a Court must not reconsider an existing final parenting order without first considering:
- Whether there has been a significant change of circumstances; and
- That it is in the best interests of the child for the final parenting order to be reconsidered.
If you have any questions about how the changes to the Family Law Act 1975 may impact your parenting arrangements and family, or would like to discuss your parenting case further, please contact our Family Law Team on (03) 9739 7377.
Written by RNG Lawyers Family Law Solicitor, Stephanie Stavrevski