Parenting matters
Significant amendments to the Family Law Act (FLA) came into effect on 6 May 2024. The new amendments are making it safer and simpler for separating families to navigate and ensure the best interests of the child remains paramount, particularly in relation to the safety of a child.
Studies have shown that matters that end up in Court have the highest concentration of complex psycho-social needs with a combination of factors such as allegations of family violence and child abuse.
Safety of the child front and centre
While it has always been the case that the FLA set out matters for judges and parties to consider when determining aspects of parenting matters, such as where the child should live and how much time it should spend with each parent, it is now very clear. The safety of the child is at the forefront. The new amendments state that the objectives are met by ensuring the safety of children and giving effect to the convention on the rights of the child, which was adopted by the General Assembly of the United Nations on 20 November 1989.
The amendments recognise and support the rights provided by the relevant Treaty, such as the right of the child not to be separated from their parents against their will, except where it is to be determined not in the child’s best interests.
Specifically, a Court must now consider what arrangements will promote the safety of the child from family violence, abuse, neglect or other harm, and each person who has the care of the child, whether or not that person has parental responsibility for the child.
When considering safety in the context of the FLA, it means considering the home environment and whether it exposes the child to family violence, whether a parent is incapacitated due to drug or alcohol misuse, or if a parent’s conduct amounts to neglect or child abuse, along with considerations of mental health compromising parental capacity.
Additionally, the views of the child, if expressed, must be considered, along with the child’s developmental, psychological, emotional and cultural needs and the capacity of the person who has parental responsibility to provide those needs.
Responsibility for major long-term decisions
Up until now, there has been a presumption that parents have equal and shared parental responsibility for a child. Parental responsibility refers to major long-term decision-making regarding matters like education, health and cultural needs. Unfortunately, this presumption was often interpreted incorrectly as giving parents a right to equal (same amount) time with the child. This often resulted in detailed negotiations or litigation based on this mistaken assumption. The presumption has always been able to be rebutted if there were reasonable grounds to believe the parent had engaged in child abuse or family violence or if the Court determined it was in the best interests of the child to apply the presumption. The amending sections have repealed the presumption, so now the emphasis is on what is going to serve the child’s best interests, particularly if there are allegations involving family violence and other issues. The whole focus is to ensure that the best interests of the child are at the front and centre when decisions about parenting arrangements are made or negotiated.
The new amendments allow for a parent to provide sole decision-making in relation to major long term issues. It encourages parents to consult on these long-term issues and treat the child’s best interests as the paramount consideration.
If a Court, however, makes an order for joint responsibility, then the parents must consult each other and make a genuine effort to come to a joint decision. Parents do not have to consult for issues that are not long-term issues if a child is spending time with that parent.
Additionally, the views of the child, if expressed, must be considered, along with the child’s developmental, psychological, emotional and cultural needs and the capacity of the person who has parental responsibility to provide those needs.
Finally, if it is safe to do so, the benefit of the child to have a relationship with their parents and other people who are significant to the child.
Harmful proceeding orders
The amending Act introduces a new concept of harmful proceeding orders to prevent vexatious litigants from filing and serving new applications without first obtaining leave from the Court. This allows the Court to prevent harm to the intended respondent and assists in protecting survivors of family violence from systems of abuse.
Reconsidering final parenting orders
Traditionally, before a Court reconsiders a final parenting order, the principle to consider was derived from the 1979 decision of Rice v Asplund, in which the applicant must establish that there has been a significant change in circumstances since making the order. This has now been codified in the amendment.
Contravention proceedings
If a parent breaches a parenting order, the other parent would have to bring contravention proceedings seeking a remedy. The previous proceedings that were required when a parent had contravened existing orders were open to significant delay. The amending Act empowers Registrars to make a further parenting order for a child to spend additional time with the parent who has not contravened the order. It is designed to make it easier for litigants to understand and Courts to apply.
Privacy
It is not unusual to read screenshots of texts on social media that are annexed to court documents to support or disprove an allegation. While there have always been protections in the FLA against breaches of privacy laws where sharing details of the legal proceedings, the new amendments make it clear what is not appropriate. Identifying the other party to the proceedings publicly, whereby name, photo, video or describing them or providing details about where they live or work or other clear links to their identity, will be seen as a clear breach of the other party’s privacy.
To what extent these goals are achieved can only be assessed over time. The change to parental responsibility may lead to more litigation. Much depends on the extent of consistency in the decisions of the Court.
