Major amendments to the Family Law Act 1975 ("the Act") were passed by the Commonwealth Parliament on 19 October 2023 ("the Amendments"). The Amendments have not yet come into effect but are expected to roll out imminently.
Who Will Be Affected?
The Amendments will impact your case if your child is a child of a marriage residing in Australia or a child of a de facto relationship not residing in Western Australia (i.e. they reside in Victoria, Queensland, New South Wales, Tasmania, Australian Capital Territory, South Australia or Northern Territory).
The Amendments will apply retroactively to ongoing cases before the Family Court.
The Amendments do not apply to children of de facto relationships who are living in Western Australia. However, it is likely that similar changes will be made to the Family Court Act 1997 (WA), which is the legislation that governs parenting matters for children of de facto relationships in Western Australia.
While the Amendments cover a range of items, the two most relevant changes are to the Court's determination of:
- best interests of a child; and
- allocation of parental responsibility for a child.
Additionally, the Amendments include:
- Greater powers to protect parties and children from harmful effects of protracted and adversarial litigation.
- A requirement for Independent Children's Lawyers to meet directly with children.
- Powers to enable government to regulate family report writers.
- Provisions to ensure children's voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction
- Simplified compliance and enforcement provisions for child-related orders.
- Two new information sharing orders to allow courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that could place children at risk.
The Court will be allowed to make these orders to obtain information at any point during proceedings so information is accurate and up-to-date. The provisions also attempt to ensure sensitive information is only disclosed in a safe and appropriate manner.
- A definition of 'member of the family' in the Act that is broad and inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship.
- A section that sets out when the Court can reconsider final parenting Orders.
How the Court will consider the best interests of the child
When the Family Court decides what orders to make for a child, the Court is required to consider what is in the best interests of the child. That is determined by reference to the primary and additional considerations in section 60CC of the Act.
Once the Amendments come into force, section 60CC will be replaced in its entirety and the Court will have to consider the following factors when determining a child's best interests:
- what arrangements would promote the safety (including safety
from family violence, abuse, neglect, or other harm) of:
- the child; and
- each person who has care of the child (whether or not a person has parental responsibility for the child);
- 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 for the child to provide for the child's developmental, psychological, emotional and cultural needs;
- the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so; and
- anything else that is relevant to the particular circumstances of the child.
There are also additional considerations the Court will have to take into account if the child is an Aboriginal or Torres Strait Islander child.
It is hoped that the above considerations will enable the Court to better consider the impacts of family violence on parenting arrangements, and which is reflected by the greater recognition of the need to protect and promote the safety of not just of the child, but "each person who has care of the child (whether or not a person has parental responsibility for the child".
It is also hoped that the introduction of the broader language of 'promoting safety' rather than the stricter 'protecting from physical or psychological harm' will lead to a more holistic approach taken by the Court when considering parenting matters affected by family violence.
The legislation has changed away from using the word "parents" to "person who has care of the child". This may affect the way the Court approaches the relationships non-parents may have with children and time with them in a positive way.
Removal of the presumption of equal shared parental responsibility
The Australian Law Reform Commission found the presumption that separated parents have equal shared parental responsibility ("ESPR") for their children was too frequently interpreted to mean a presumption of equal time.
"Parental responsibility" means all the duties, powers, responsibilities, and authority that parents have in relation to their child. It is not the same as spending equal time with a child or shared care.
The Amendments remove the presumption of ESPR and the Court will have to be satisfied that an order for ESPR is in a child's best interest before making this order.
The removal of the presumption of ESPR may change the Court's assessment of parental responsibility in cases where there are allegations of family violence.
This article is intended to provide general information only. Specific advice should be sought as to the impact the Amendments may have on your parenting matter.
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