Navigating the best interests of the child – evolution of Australian Family Law and new changes coming into effect May 2024 – Family Law

I was watching a member of the stolen generation explain on a
television show that when the children were taken away from their
homes, from their parents and relatives, not allowed to speak their
language, beaten and abused, that it was thought at that time, that
that was in the best interests of the removed children. Today we
are horrified that anyone would consider that this policy was in
the best interests of children.

Today, to determine what is in the best interests of children of
separated parents we look to the Family Law Act 1975 (Cth).

Fundamental to the operation of Courts today administering the
Family Law Act is that when a Court considers the decision it is
required to make in parenting matters that its paramount
consideration is the best interests of the children. How a Court
determines what is the best interests of the children is to some
extent governed by the Act itself.

This is important because the Act is about to change on 6 May,
2024 and the change is driven by a number of family law reviews
over the past decade, the latest being the Australian Law Reform
Commission’s 2019 report and the 2023 Government Response to the Joint Select
Committee on Australia’s family law system.

The changes include:

1. The objects of the Act have been simplified to require the
   Court to ensure the best interest of children are met, including by
   ensuring their safety.




2. The presumption that it is in a child’s best interest that
   the parents have equal shared parental responsibility is out.




3. The Act now provides that each parent has parental
   responsibility for making joint decisions about matters that affect
   a child in the long term, but this can be overruled by a Court
   order.




4. Parents are now required to consult when making joint decisions
   about matters that affect the child in the long term and when
   making those decisions the best interests of the child have to be
   the primary focus of the parental decision making.




5. The 16 factors a Court previously had to consider when
   determining a child’s best interests are out.




6. A Court is now required to consider the child’s safety, the
   child’s view, the child’s needs, the capacity of the
   child’s carer to provide the child’s needs, the benefit of
   the child having a relationship with the parents or other
   significant person to the child, any other relevant matter, and a
   child’s right to enjoy their Aboriginal or Torres Strait
   Islander culture.




7. The section that required a Court to consider whether a child
   spending equal time with each parent was in the child’s best
   interest is out.




8. An additional clause has been inserted in the Act which has
   codified the case of Rice & Asplund (1979) FLC 90 725.
   Now in a matter where there are previous Court orders, a Court must
   not reconsider the case if there has not been a significant change
   of circumstances and it is not in the child’s best interest to
   re-open the case.

These changes are the beginning of a range of family law reforms
aimed at ensuring separating couples can better understand the
family law decision-making framework to resolve parenting matters
safely and effectively.

The evolution of the law insofar as it relates to children in
Australia reflects a significant shift from prioritising parental
rights to emphasising the best interests of the child. This change
underscores the importance of safeguarding children’s
well-being during and after family breakdowns. While challenges
persist, the ongoing commitment to prioritising children’s
needs within the legal framework bodes well for the future of
Australian families, by helping them resolve parenting matters in
an amicable and child-centred way.

Further reforms are coming in relation to property settlement,
children’s contact services; and the Court’s Case
Management and procedures, so stay tuned.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.