Change is Coming to Child Custody Laws - How will FCFCOA Approach Affect You?
The Family Law Act of 1975, the cornerstone of child custody legislation, is on the brink of a significant overhaul. These impending changes promise to revolutionize the landscape of disputes related to child custody. Out with the old concept of "equal shared parental responsibility," and in with the new paradigm of "joint decision making." While these terms might appear as legal jargon, let us decipher them for you.
The Current Framework:
Equal Shared Parental Responsibility presently, the law operates under the framework of equal shared parental responsibility. This means that the Court presumes parents share equal responsibility for their children, unless evidence suggests otherwise. However, this concept is frequently misunderstood. Many parents embroiled in custody battles mistakenly believe that equal shared parental responsibility equates to equal time with their children. This assumption is incorrect.
Equal shared parental responsibility signifies a presumption that both parents have an equal say in making long-term decisions about their children. These decisions encompass crucial aspects of a child's life, such as their education, healthcare, religious upbringing, and even their names. Yes, you read that correctly – a parent seeking to change their child's name to something unconventional can be vetoed by the other parent.
This confusion often complicates custody disputes. Parents may believe they possess legal entitlements to equal time with their children when, in fact, the paramount concern should be the best interests of the children, not the desire for equal time.
A New Paradigm: "Joint Decision Making"
The proposed shift in terminology aims to replace "equal shared parental responsibility" with "joint decision making." Under this new terminology, parents will be strongly encouraged to collaborate on long-term decisions concerning their children. However, the crucial distinction lies in the phrase's explicit acknowledgment that joint decision making applies only when it is safe to do so.
This groundbreaking change prioritises the safety and well-being of parents and children, especially in cases marked by a history of family violence or coercive control.
Under the new construct the Court will now assess whether joint decision making would jeopardise one parent's safety or leave them in a vulnerable position. This change signifies a significant step forward for individuals affected by family violence and underscores that the law does not presume equal shared time with parents. The primary concern remains the best interests of the children.
There is much debate on the impacts that this may have.
Reforming the Law: Seven New Criteria
These changes aren't limited to semantics; they represent a comprehensive reform of the law governing parenting arrangements. The revised approach shifts the focus to what's in the best interests of the child, abolishing the controversial presumption of "equal shared responsibility" that has been in place since 2006. This presumption mandated that both parents should have an equal say in major decisions about their children and even implied equal time with both parents.
The upcoming reforms introduce seven factors that judges must consider. These factors have been simplified from the previous list of 15 and include the child's safety, their views, the benefit of having relationships with both parents, and the child's developmental, psychological, emotional, and cultural needs.
Removed from the list are factors such as the lifestyle and background of a child and their parents, the attitude to parenthood demonstrated by each parent, the impact of changing circumstances on the child, and the parents' prior efforts to spend time with the child.
Closing Thoughts: Navigating the Transition
These anticipated changes to custody laws are poised to usher in a new era for parents navigating custody disputes. While they may represent a positive shift, particularly for those affected by family violence or coercive control, there are concerns that the simplification of the laws may introduce some uncertainty and potentially lead to increased litigation during the adjustment period.
Particularly for those who may have less time with their children due to work commitments or travel time with children during times of care our firm has seen a surge in questions about the affect this may have in Court orders. There is no simple answer - it takes careful anaylsis advice and dialogue to understand the impact and that is why we are addressing this today.
At Lagom Family Law, we understand that these changes can be daunting.
Our dedicated team is committed to helping you navigate this transition, ensuring that you fully comprehend how these changes will impact your family and parenting arrangements. Should you require further insight into these upcoming changes, our team typically has the availability to schedule a consultation within a day or two of your initial contact. Please do not hesitate to reach out to us and book a free discovery call. Your peace of mind and understanding during this transition are paramount to us.
These reforms are expected to pass through the Senate with sufficient crossbench support and come into effect six months after being passed. Stay informed, and let us guide you through these transformative changes.
You can book a free discovery call here or contact us at the office on (02) 8379 1835.
We look forward to helping you.
Author: Kalisha Martin, Senior Lawyer and Lichee Hogland, Dircector and Principal Lawyer at Lagom Family Law
** The information contained in this blog is general and does not constitute legal advice on your particular maner. You should consult a lawyer specialising in family law for independent legal advice regarding your particular circumstances **
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Lagom Family Law is a boutique legal practice lead by Principal Lichee Hogland who strives to achieve the best possible outcome for her clients whilst being approachable and respectful.