Changes to Parenting Matters in the FCFCOA Starting 6 May 2024

Article Kara Cook 22 May 2024

Effective from 6 May 2024, the Federal Circuit and Family Court of Australia (FCFCOA) will implement significant changes in handling and assessing parenting matters, influenced by recent legislative amendments in family law. These changes will apply to all new parenting matters and those pending resolution as of 6 May 2024.

Overview of the Family Law Amendment Act 2023

The Family Law Amendment Act 2023 introduces new guidelines regarding:

- The criteria a court must evaluate to determine a child's best interests.

- Decision-making responsibilities for long-term issues affecting a child.

- Time allocation for a child with the non-residential parent.

- The possibility of reopening concluded parenting cases.

Under this Act, the child's welfare and rights are given utmost importance in the Court's considerations for parenting orders. The amendments emphasize not only the best interests of the child but also enhance the connection between the Court and the First Nations community.


Revisions to Equal and Shared Parental Responsibility

Previously, section 61DA of the Family Law Act 1975 mandated that the Court should presume that Equal Shared Parental Responsibility (ESPR) was in the child's best interests. If ESPR was decided, section 65DAA required the Court to consider equal time with both parents, provided it was practical and in the child's best interests. This led to misconceptions among parents about automatic entitlement to equal time and shared responsibility, often regardless of the circumstances.

The recent legislative changes have eliminated:

- The presumption of ESPR.

- The terms 'equal time' and 'substantial and significant time' from the Family Law Act.

- The automatic 'trigger' for considering these terms.


Determining Time Allocation with Each Parent

Under the new amendment, each parenting case will be evaluated on its specific merits, with the primary focus being the child's best interests. The Court will tailor arrangements based on individual circumstances, considering factors such as the child's safety, the child's views (when appropriate), the child's needs, and the benefits of relationships with each parent and significant individuals like siblings and grandparents.

Cultural factors, including the child's experience of their culture and the impact of the parenting arrangement, especially for Indigenous Australian children, will also be considered.


Impact on Long-Term Decision Making for the Child

According to the new section 61D(3) of the Act, parenting orders can now allocate sole decision-making responsibility to one parent. This includes decisions about long-term issues such as education, health, welfare, and religious upbringing. If joint decision-making is ordered, parents must make a genuine effort to reach a consensus and base their decisions on the child's best interests.


Revisiting old Parenting Orders

It is important to note that any existing Parenting Orders made before the introduction of the new legislation will not be automatically changed.

If a final Parenting Order was already in place before the introduction of the new legislation, the Court must not reconsider the order unless:

  • The Court has considered whether there has been a significant change of circumstances since the previous final order was made;
  • The court is satisfied that it is in the best interests of the child for the final parenting order to be reconsidered.

The family law team at CDQ is fully up to date with the latest legislative changes and understands their application to both new and existing parenting matters.  If you have any questions about how the changes will impact your family law matter please contact us on ph: 02 8556 0130.