Almost every first meeting I have about children starts the same way. Someone tells me the law says the children are supposed to be with each parent half the time. It is the single most common thing people believe about family law in Australia, and since May 2024 it has been wrong.

The Family Law Amendment Act 2023 changed the parenting provisions of the Family Law Act 1975. The changes commenced on 6 May 2024 and they apply to new matters and to matters already on foot, with a narrow exception where a final hearing had already begun.

What was removed

Two things went. The first was the presumption of equal shared parental responsibility. That presumption said a court had to start from the position that both parents share responsibility for major long-term decisions, unless there were reasonable grounds to believe a parent had engaged in abuse or family violence.

The second was the step that followed it. Where the presumption applied, the court had to consider whether the children spending equal time with each parent was in their best interests and reasonably practicable, and if not, whether substantial and significant time was. That mechanical sequence is no longer in the Act.

What the court considers now

Section 60CC used to set out two primary considerations and a long list of additional ones, with judges obliged to weigh the first against the second. It now sets out a single list of six considerations, none of them ranked above the others.

  • What arrangements would promote the safety of the child and of each person who cares for the child, including safety from family violence, abuse and neglect.
  • Any views expressed by the child.
  • The developmental, psychological, emotional and cultural needs of the child.
  • The capacity of each person who has or is proposed to have parental responsibility to provide for those needs.
  • The benefit of the child having a relationship with their parents, and with other people who are significant to them, where it is safe to do so.
  • Anything else that is relevant to the particular circumstances of the child.

Alongside those, the court must consider any history of family violence, abuse or neglect involving the child or a person caring for them, and any family violence order that applies. For an Aboriginal or Torres Strait Islander child there is a further consideration about the child's right to enjoy their culture.

What this means for your matter

It means the argument has moved. You can no longer walk into a mediation and assert a legal entitlement to half the nights. What you can do is show what arrangement actually works for your child, and why.

In practice that favours the parent who can point to specifics. School pick-up times you actually make. Medical appointments you actually attend. A bedroom in a home the child already knows. Judges deal in evidence about this particular child, not in averages.

It also means safety carries more weight than it did, and carries it earlier. Safety is the first consideration on the list, and the court is required to look at the history of violence rather than wait for someone to raise it as an exception to a presumption.

If you already have orders

A change in the law is not, by itself, a reason to reopen final parenting orders. There is a separate threshold for that, now written into section 65DAAA, and it is a real hurdle. Orders that were made under the old law continue to operate.

What has changed is the frame for any new dispute, and for anything you are negotiating now. If you are working from a template, an old blog post, or advice you were given in 2022, check the date on it. A great deal of what is still online describes the Act as it was before May 2024.