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Family Law Changes

Family law is undergoing significant changes. The Family Law Amendment Act 2023, which comes into effect 6 May 2024, substantially   influences how the Court’s treat parenting orders and the conduct of parents regarding decision making. There are numerous inbound changes.  This article explores two of the most significant.

  1. Changes to how separated parents are to make decisions regarding long-term issues for their child; and
  2. Changes to what a Court must consider when determining the child’s best interests.

Change in Decision Making for the Benefit of the Child   

In essence, this is a change from the previous Equal Shared Parental Responsibility to the current Joint Decision Making.  The assumption is that this will benefit the long term care and welfare of the child.  It eliminates the Goode Pathway, which has been the basis for the presumption of the court for equal shared parental responsibility.

Previous: Equal Shared Parental Responsibility

Previously, there was a presumption within family law that allowed for equal shared parental responsibility when it came to certain long term decision making regarding a child. 

This meant that the Court would presume that it was within the child’s best interest for there to be equal shared responsibility. This is different from equal time, in that it regards involvement in making decisions regarding major long-term issues concerning the child. This can include education, cultural exposure, health, naming or religious decisions. 

The Court does have the discretion to make orders contrary to this presumption, so long as it is satisfied that the best interests of the child would indicate otherwise.

Current: Joint Decision Making in Family Law Changes

The Family Law Amendment Act 2023 is moving away from this presumption and instead implementing a joint decision-making regime. This refers to a process whereby both parents are required to consult with each other in what is a genuine attempt at coming to a joint decision regarding certain major long-term issues concerning the child. 

The goal of this new method is to ensure that both parents maintain an involved role in the impactful parts of their child’s life, even if they are separated. This stems from the principle that it is generally in-line with the child’s best interests for both parents to be involved in their upbringing. 

The Elimination of the Goode Pathway

The Family Law Amendment Act 2023 eliminates the presumption of shared parental responsibility, and replaces it with the joint decision making requirement.  This change involves eliminating the Goode Pathway.

Under the previous regime of equal shared parental responsibility, the Court used the Goode Pathway which involved considering the following, in order:

  1. Equal Shared Parental Responsibility;
  2. Equal time;
  3. Substantial and significant time.

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Changes to the Best Interests Requirement

When a Court is preparing to make a parenting order under the Family Law Act, paramount consideration must be given to the best interests of the child. The Family Law Amendment Act 2023 will impact how the Court determines these best interests. Below is a comparison between the current requirements and the new requirements under these family law changes.

Previous Best Interests Requirements

Previously, the best interests of a child were split into primary and additional considerations. 

The primary considerations were:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – this is to be given greater weight. 

The additional considerations were:

  1. Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; 
  2. The nature of the relationship of the child with:
  • each of the child’s parents and 
  • other persons (including any grandparent or other relative of the child);
  1. The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
  • to participate in making decisions about major long-term issues in relation to the child
  • to spend time with
  • to communicate with the child;
  1. The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
  2. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
  • either of his or her parents or 
  • any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
  1. The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
  2. The capacity of
  • each of the child’s parents and 
  • any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

  1. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
  2. If the child is an Aboriginal child or a Torres Strait Islander child:
  • the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
  • the likely impact any proposed parenting order under this Part will have on that right;
  1. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  2. Any family violence involving the child or a member of the child’s family;
  3. If a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
  • the nature of the order;
  • the circumstances in which the order was made;
  • any evidence admitted in proceedings for the order;
  • any findings made by the court in, or in proceedings for, the order;
  • any other relevant matter;
  1. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
  2. Any other fact or circumstance that the court thinks is relevant.

This previous regime was viewed as unnecessarily complex, hence the need for change. 

Current Best Interests Requirements in Family Law Changes

In what is a major streamlining of a serious and sensitive consideration, the Court will now consider 7 main factors in deciding what arrangements will be in the best interests of the child. These factors include:

  1. the safety of the child and people who care for the child (including any history of family violence and family violence orders);
  2. the child’s views;
  3. the developmental, psychological, emotional and cultural needs of the child;
  4. the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
  5. the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings);
  6. anything else that is relevant to the particular circumstances of the child; and
  7. If the Court is making orders about an aboriginal and/or Torres Strait Islander child, the court will also consider how parenting arrangements will help that child to experience their aboriginal and Torres Strait Islander culture.

How can BSM Law help?

Brander Smith McKnight’s family lawyers have the legal expertise, compassion, empathy and professionalism to guide you through this process and advocate for your interests so you get a fair and equitable outcome.  Our lawyers are up to date with the most recent changes and legislative amendments that affect you in parenting orders made by the Court and the decisions that are involved for you and your ex-partner for the best long term outcome for your children.  Our family lawyers will advise and guide you through this new process.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

BSM Law is conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.

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