The Peninsula Community Legal Centre (PCLC) helps many local parents work their way through the legal system after their relationship ends. Family law is the number one problem that the centre deals with – more than half of its clients request help with family law matters, with many involving family violence.
The law on how a court makes parenting orders for children after separation is changing significantly on 6 May 2024. While most separating parents make their own parenting arrangements, parents can apply to the Federal Circuit and Family Court of Australia for parenting orders where agreement can’t be reached. Parenting orders cover things like how much time a child is to spend with each parent, and who is responsible for making decisions about major long-term issues such as healthcare, schools, and religion. Courts must always make parenting orders that are in the best interests of the child, and this will remain unchanged. However, the upcoming reforms aim to simplify the law and make it more accessible, confirm the best interests of the child as the priority of the family law system, and to elevate safety.
“The changes to the law are the result of years of advocacy by victim-survivors of family violence and organisations like ours who work with them,” said Jackie Galloway, PCLC’s CEO. “Court data shows that in 2021 – 2022 family violence was alleged in 80% of matters filed in the Federal Circuit and Family Court of Australia. 66% involved risk factors such as family violence, child abuse, mental health issues or drug, alcohol or substance abuse putting a child at risk. While issues of risk have long been considered, previously the language of “safety” was not used in the Family Law Act when it came to decisions about parenting.”
Under the new reforms, “safety” is now a prominent feature. The court must now explicitly consider the safety of the child and their carer, along with five other issues in a new, simplified list of factors to consider when determining the parenting arrangements that will be in the best interests of a child. The changes also highlight the relevance of family violence orders and past family violence, abuse and neglect when making decisions about future parenting arrangements.
Another major change relates to how longer-term decisions are made for children, with the abolition of “the presumption of equal shared parental responsibility”. Under the old law, it was presumed to be in the child’s best interests for parents to share decision-making for major long-term issues. The presumption was criticised for many reasons, including diverting attention away from the best interests of the child.
Another problem was that if a Court made an order for equal shared parental responsibility, it also had to decide whether the child should spend “equal” or “substantial/significant” time with each parent. This led to a common misunderstanding where some parents thought they were legally entitled to 50/50 shared care arrangements and time with their child. As a result, some parents, particularly those affected by family violence, were agreeing in their out-of-court agreements to unsafe or unfair arrangements due to misunderstanding the law.
“By removing the word “equal”, the new reforms make it clearer that there is no parental entitlement to equal responsibility or equal time with children under Australian law,” said Ms. Galloway. “Who will have parental responsibility is solely guided by what is in the best interests of the child, including safety, and is decided on a case-by-case basis.”
Other changes also include children being given a greater voice through independent children’s lawyers meeting with a child; a requirement to consider how parenting arrangements will help an Aboriginal and/or Torres Strait Islander child to experience their culture; and greater powers for the court to prevent systems abuse by making “harmful proceedings’ orders for repeated, frivolous applications. There are also new information sharing arrangements being introduced which will broaden the scope of information the Court can obtain from child protection, police and firearms authorities in order to assess safety risks.
“Most of the changes in the new law will come into effect on 6 May 2024. From then, the changes will apply to all new and existing parenting proceedings, except where the final hearing has already begun,” said Ms Galloway. “So if you have a family law matter where the final hearing has not started before 6 May 2024, these laws will apply to you.”
Importantly, parents who are not before the courts but who are trying to work out parenting arrangements will also need to understand the changes and use the new legal framework in their decision-making.
If you are experiencing family violence and family law problems, you can contact Peninsula Community Legal Centre to make a free appointment on 9783 3600 or pclc@pclc.org.au.
END.
DATE: 24 April 2024
CONTACT:
Kirsten Young
PENINSULA COMMUNITY LEGAL CENTRE
0428 844610
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