Important Changes to the Family Law Act

How they may affect your family law parenting matter

Introduction

On 6 May 2024, The Family Law Amendment Act 2023 came into effect, delivering four major changes to the Family Law Act (the Act) as follows:

1. Removing the presumption of 'equal shared parental responsibility';
2. Redefining the 'best interests of the child';
3. Refining the grounds for making changes to final parenting orders; and
4. Requiring the Independent Children's Lawyer to speak with the child.

The Federal Government has stated that these reforms are necessary to 'assist courts and parents to resolve parenting disputes safely, efficiently and with a clear focus on the best interests of the children involved.'

The new provisions are not retrospective, in that they do not apply to matters decided before 6 May 2024.

The changes

Removing the presumption of 'equal shared responsibility'

Prior to 6 May 2024, the Act presumed that it was in the best interests of the child for their parents to have equal shared responsibility for long-term decisions affecting them.

The legislation now allows for more tailored arrangements to be made that reflect different areas of parental responsibility. So, for example, one parent may make decisions regarding the child's schooling, while the other decides upon their participation in religious traditions.

As part of this change, reference to 'substantial and significant time' in the Act has been removed. Where previously, 'equal time' with both parents was found not to be in the child's best interest, the court had then been required to consider 'substantial and significant time' with the other parent. Removing this requirement is expected to allow for more flexibility in accommodating a child's best interests.

Redefining the 'best interests of the child'

The Family Law Act no longer requires courts to give regard to 'primary' and 'additional' circumstances when determining what is in a child's best interest. Instead, Section 60CC of the Act provides six 'general considerations' that are to be considered equally as follows:

1. The need to promote the safety of the child and each person who has care of the child, whether or not this person has parental responsibility for the child (including safety from family violence, abuse, neglect or other harm);
2. Any views expressed by the child;
3. The developmental, psychological, emotional and cultural needs of the child;
4. 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;
5. 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
6. Anything else that is relevant to the particular circumstances of the child.

There are two 'further considerations' applicable to matters involving Aboriginal or Torres Strait Islander children in relation to maintaining connection to culture.

These changes mean that courts may determine what weight to give to each factor, as opposed to operating under a hierarchy of considerations.

Refining the grounds for making changes to final parenting orders

From 6 May 2024, courts may only consider a change to final parenting orders if there has been:

• A 'significant change in circumstances' AND
• It is either in the child's best interests for the Final Order to be reconsidered OR
• There is agreement from all parties to the final order, even if there has not been a significant change of circumstances or it is not in the child's best interests.

It is generally accepted that the uncertainty associated with continued litigation over a child is not in their best interests. While this principle was first established in Rice v Asplund back in 1979, it has now been codified in Section 65DAA the Act.

The effect is that courts may now give regard to the following factors when considering a new application after final parenting orders are made about children:

• The reasons for the Final Order and the material on which it was based;
• Whether there is any new material available that was not available to the Court that made the Final Order;
• The likelihood that if the Final Order is reconsidered, the Court will make a new parenting order that affects the operation of the Final Order in a significant way; and
• Any potential benefit or detriment to the child that might result from reconsidering the Final Order.

Requiring the Independent Children's Lawyer to speak with the child

The Independent Children's Lawyer (ICL) plays a key role in family law matters. As children are not typically allowed to attend court, it will appoint an ICL to independently advocate on behalf of the child's best interests.

Prior to 6 May 2024, the ICL was not required to meet with and speak with the child concerned. Now, under Section 68LA the Act, there is an obligation for the ICL to do so unless:

• the child is under the age of 5 years (unless deemed appropriate);
• the child does not want to meet with the ICL or express their views; or
• there are 'exceptional circumstances' (for example, such a meeting would expose the child to psychological harm).

Conclusion

It is too early to assess whether the major reforms outlined above are achieving their objectives of making it easier for separating families to better understand and ensure that the best interests of the child are being achieved in parenting matters.

However, they at least appear to reassert the paramount interest of the child through such measures as removing presumptions concerning parental responsibility and requiring the input of the child.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.