On 6 May 2024, the Family Law Amendment Act 2023 (FLAA) came into effect.  The FLAA introduced a range of changes, most of which effect parenting matters.

The FLAA sets out new laws relating to what the Court must consider when determining “what is in the child’s best interests” and relates to all new and existing parenting matters, except those matters before the Court where a final hearing has already commenced.

The main purpose of the FLAA is to make the family law system simpler and safer and to ensure that, when parenting orders are being made, the best interests of the child continues to be the paramount consideration.

The FLAA sets out new legislation relating to:

1. What issues the Court must consider when determining what is in the best interests of the child;
2. Who will be responsible for making decisions for the child relating to long-term issues, i.e. both parents or one parent solely;
3. When the child will spend time with the parent with whom they are not already living; and
4. Whether a concluded parenting matter can be re-opened (if the previous orders do not meet the new provisions).

The child’s best interests

Previously, there were two (2) primary considerations that the Court had to take into account when deciding what parenting arrangements will be in the child’s best interests.  Those two (2) primary considerations where:

1. The benefit to the child of having a meaningful relationship with both parents; and
2. The need to protect the child from physical and psychological harm by being subject to, or exposed to abuse, neglect or family violence.

Now, under the new amendments, there are six (6) main factors that the Court must give consideration to when determining what parenting arrangements would be in the best interests of the child.  Those six (6) main factors are:

1. What arrangements would promote the safety of the child (including safety from being exposed to family violence, harm or neglect), and the safety of the parent of the child.
2. The cultural, developmental, emotional and psychological needs of the child;
3. The capacity of the parent who will be responsible for the child including their capacity to provide for the child’s cultural, developmental, emotional and psychological needs;
4. The benefit to the child of having a relationship with both parents, and other people of significance (e.g. siblings and grandparents);
5. The child’s own views (if appropriate); and
6. If the child is Aboriginal or Torres Strait Islander, the child’s right to learn and enjoy their culture by having the opportunity to connect with or maintain their connection with members of their cultural heritage and community.

Who makes decisions for long-term issues relating to the child?

Under the previous legislation, there was a presumption that parents would share equally in the decision-making responsibility relating to major long-term issues for the child (e.g. education, healthcare, religion, the child’s name).  However, under the FLAA, there is no longer the presumption that the parents will share equally the decision-making.

Based on what is in the best interests of the child, the Court can order that decisions are made jointly by both parents or that only one parent is to be responsible for making decisions in relation to major long-term issues relating to the child.

The FLAA encourages parents to reach a mutually agreed decision for major long-term issues in relation to the child and make decisions that are in the child’s best interests. 

If the Court makes an order that the parents are to make decisions jointly, then the parents are expected to make a genuine effort to come to a joint decision.

The parents’ time with the child

Many parents are under the misconception that they are entitled to spend equal time with their child and that the Court will automatically make orders to that affect. 

Previously, under certain provisions of the Family Law Act 1975, the Court was required to consider that the parents spend equal time with the child unless there were certain circumstances preventing it from doing so e.g. a history of family violence involving the child or the parent seeking to care for the child.

Under the FLAA, there is no longer a requirement for the Court to start from the presumption that orders for equal time with each parent should be made.

What if you have existing parenting orders?

Parents who have existing final parenting orders should continue to follow them.  Existing final parenting orders will not automatically be changed. 

Re-opening a parenting matter

Under the FLAA, existing final parenting orders can be reconsidered by the Court if:

1. The Court considers that there has been a significant change in circumstances since the final orders were made which make it necessary for the existing orders to be amended; or
2. If the court is satisfied that it is in the best interests of the child for the final parenting orders to be reconsidered.

Contact us

If you have questions in relation to Family Law matters, contact us to book an initial consultation with one of our experienced family lawyers, and we will provide you with tailored advice with respect to your unique circumstances. call 1800 999 529, email mail@rmolaw.com.au or submit an enquiry on our website.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

Annette Cussens

Associate