Changes to the Child's Best Interest Provisions in the Family Law Act

The law surrounding how the Court makes parenting orders has changed. As of 6 May 2024, there are new sections in the Family Law Act that govern what the Court is to consider when making parenting orders, and various other aspects of how parenting proceedings are to be run.

When making parenting orders, the Court must make orders that are in the child’s best interests. This has not changed. However, the factors for the Court to consider when determining what is in the child’s best interests are different. Previously, there were two primary considerations – being the right of a child to have a meaningful relationship with both parents, and protection from risk of harm – and a number of additional considerations. Now, there are six things for the Court to consider, with none of them being given priority over the rest in the Act. These are: 

1. What arrangements would promote the safety of the child and each person who has care of the child;
2. Any views expressed by the child;
3. The developmental, psychological, emotional, and cultural needs of the child;
4. The capacity of each parent to provide for the child’s developmental, psychological, emotional, and cultural needs;
5. The benefit to the child of being able to have a relationship with each parent, and other people who are significant to the child, where it is safe to do so; and
6. Anything else that is relevant to the child’s particular circumstances.

Where the proceedings relate to an Aboriginal or Torres Strait Islander child, the Court also must consider their right to connect with their culture. 

The new parenting provisions do not provide for the Court to make any assumptions regarding what time arrangements might be appropriate. Equal time is no longer a starting point for parents who are able to make decisions together. How much time a child spends with each parent will depend on the particular circumstances of that child. 

Parenting matters that are already before the Court will have the new provisions apply. Only matters that had their final hearing commence prior to 6 May 2024 will be decided on the basis of the old law. Any parenting orders made prior to the change in law will not be impacted.

If you would like more information on anything in this blog, please contact Christine Mayes in our Family Law Team on 4417 4417.