Amended definition of ‘best interests of the child’
The role of the Federal Circuit and Family Court of Australia, when making parenting orders, according to the legislation, has always been to consider the ‘best interests of the child’ as the paramount or most important consideration. The amendment to the Act will not change this, but will change what the court is to consider and how it is to be considered.
The Act, prior to amendment, listed ‘primary’ and ‘additional’ considerations for the Court. The primary considerations, as the term implies, carried greater weight than the additional considerations.
The amendments to the Act impose six general considerations which are all treated equally as importantly as the other, and two additional considerations if the child is of Aboriginal and/or Torres Strait Islander descent.
The six general considerations are:
- what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child);
- any views expressed by the child;
- the cultural, psychological, emotional, and cultural needs of the child;
- the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the developmental, psychological, emotional and cultural needs;
- the benefit to the child to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
- anything else relevant to the particular circumstances of the child.
The additional considerations, where the child is of Aboriginal or Torres Strait Islander descent, are:
- the right of the child to enjoy their Aboriginal or Torres Strait Islander culture, and facilitating this by enabling them to engage with family members, their community, their culture, country, and language; and
- to consider how the proposed parenting order will impact their right.
Amended presumption of ‘equal shared parental responsibility’
The Act currently provides that each parent has parental responsibility for their child who is not yet 18, subject to an order of the court which varies this. The amendment to the Act does not propose to amend this.
The Act currently states that the court is to presume it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (which is different from the amount of time the child spends with each parent). The amendment to the Act removes this presumption, instead giving the court discretion to consider the unique circumstances of the case in making customised proposed orders assigning parental responsibility.
The amendments could result in the court ordering that one parent has sole parental responsibility for specific major or long-term decisions, resulting in the other parent having no input into those types of decisions.
Amended mandatory consideration of ‘equal or substantial time arrangements’
The Act currently provides that the court must consider whether making an order providing for equal time arrangements is:
- in the best interests of the child; and
- reasonably practicable,
and if the court considers both of those conditions are satisfied, consider making an order to provide that the child is to spend equal time with each parent.
The Act also currently provides that the court must consider making an order of substantial and significant time with both parents, if the order provides for equal shared parental responsibility but does not make an order for the child to spend equal time with both parents.
The amendments to the Act remove this mandatory consideration. The court is no longer obliged to consider making equal or substantial time arrangements, but may still consider these options in accordance with their assessment of the child’s best interests (under the new set of considerations).
Amended obligation or Independent Children’s Lawyers (ICLs)
Since children cannot attend court and cannot represent themselves, an ICL can be appointed by the court who represents the interests of the child involved in proceedings. The role of the ICL is to advocate for the child about their best interest, independently of the parent’s legal representatives.
The amendments will require an ICL to meet with and speak to the child or children about whom the proceedings relate. Previously, the ICL could decide if it was appropriate to speak with the children but the amendments will impose this mandatory requirement (except in certain circumstances). These exemptions include:
- if the child is younger than 5 years old; or
- if the child does not want to meet with the ICL; or
- if the child does not want to express any views; or
- if there are ‘exceptional circumstances’, which include that the child would be exposed to a risk of psychological or physical harm, which cannot be safely managed, or would have a significant adverse effect on the wellbeing of the child.
The ‘exceptional circumstances’ will come down to the facts, circumstances, and nature of the case.
None of the amendments are proposed to restrict how and when the ICL carries out these duties, and it will remain in the ICL’s discretion when this is done (but must be prior to the court making final orders). Also, none of the amendments are intended to require the child to express any view to the ICL or the court, and the court cannot make orders that the child must express their views.
What these amendments will mean practically
It is hard to say how courts will interpret these legislative changes, but it is clear that judges will have much greater discretion in the making of parenting orders.
When separating from your partner or spouse, it is common that each of you will have different ideas about what is necessary and appropriate for parenting the children and to promote their best interests. It is vital that you engage the best legal representative for your case.
If you are going through separation and need legal help, our lawyers at Mott & Associates are experienced with family law and parenting matters, and are available to advise and represent you.
