Changes to the Family Law Act 1975: What Parents Need to Know

1. Removal of the Presumption of Equal Shared Parental Responsibility (“ESPR”)

One notable change is the removal of the presumption of ESPR. Previously, when making a parenting order, the Court was required to apply a presumption that it was in the best interests of children for their parents to have equal shared parental responsibility relating to major long-term issues such as medical and educational decisions. This presumption will no longer exist, allowing for more flexible arrangements based on individual circumstances of each case and what is best for each child. The change has been described as shifting the focus from “parents’ rights” and back to the needs of children.

3. Simplification of the ‘Best Interests’ Checklist

In an effort to make the determination of a child’s best interests more straightforward, the ‘best interests’ factors have been simplified. The current legislation provides a non-exhaustive list of two (2) primary and 14 additional considerations for determining what is in the best interests. This is being simplified to six (6) factors focusing on:

• Children’s safety,
• The views of children,
• The developmental, psychological, emotional and cultural needs of children,
• The capacity of those with parental responsibility,
• The benefit to children of being able to have a relationship with their parents and other significant people,
• A “catch all” of anything else relevant.

5. Formalisation of Requirements for Independent Children’s Lawyers (“ICLs”)

Another important change is the legislative codification of the requirements for ICLs. These lawyers, who represent the interests of the child in family law proceedings, will now be mandated to meet with the children and seek their views directly. This ensures that children have a voice in the legal process and that their perspectives are taken into account when decisions are made about their future.

Specialist Family Lawyers for Sydney and Newcastle