Family Law Act amendments: What do the changes mean for you?

The Family Law Amendment Bill 2023 (Cth) which was passed on 19 October 2023 will result in significant changes to the Family Law Act 1975 (Cth) in relation to parenting matters. Most of the amendments to the Family Law Act commence on 6 May 2024, unless a Final Hearing has already commenced. In this case, the old legislation will apply.

The most significant changes to the Family Law Act are discussed below.

1. Removal of the Presumption of Equal Shared Parental Responsibility

Under the current regime, the Court is required to apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child unless certain circumstances, such as family violence apply. Equal shared parental responsibility means that parents are required to make decisions about major long-term issues for the child such as where they go to school and major medical decisions jointly. If an order is made for equal shared parental responsibility, the Court must consider making an order for the child to spend equal time or significant and substantial time with each parent if it is in the child’s best interests and reasonably practicable. These sections have often resulted in a misconception that parents are entitled to equal time with their child.

The amendments remove the presumption of equal shared parental responsibility and requirement for the Court to consider making an order for the child to spend equal time or significant and substantial time with each parent where an order for equal shared parental responsibility has been made. The removal of the presumption means that the Court will decide on the allocation of parental responsibility based on what is in the child’s best interests (discussed in more detail below).

A parenting order that deals with allocating parental responsibility for making decisions about major long-term issues in relation to the child may provide for joint decision-making or sole decision-making in relation to all or specified major long-term issues. If a parenting order provides for joint decision-making about any issue, parents are required to consult with each other in relation to the decision and make a genuine effort to come to a joint decision. The amendments also state that the parents are not required to consult each other on issues that are not major long-term issues, if a child is spending time with that parent under a parenting order

2. New Factors to determine what is in the Child’s Best Interests

Currently, the Court must consider a number of factors to determine what parenting orders are in the best interests of a child.

Firstly, the Court must consider primary considerations which are:

1. The benefit of the child having a meaningful relationship with both parents; and

2. The need to protect the child from harm from being subjected or exposed to abuse, neglect or family violence. When considering these two factors, the court must give greater weight to the need to protect the child from harm.

After the Court considers the primary considerations, it must consider fourteen additional considerations including any views expressed by the child and the nature of the child’s relationship with each of their parents and other persons.

The amendments aim to simplify the considerations the Court must consider when determining what is in the child’s best interests by removing the structure of primary and additional considerations and reducing the factors that the Court must consider to six general considerations which are:

1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and the child’s carers;
2. Any view expressed by the child;
3. The developmental, psychological, emotional and cultural needs of the child;
4. The capacity of each parent to provide for those needs;
5. The benefit to the child of being able to have a relationship with both parents and other people who are significant to them, where it is safe to do so; and
6. Anything else that is relevant to the particular circumstances of the child.

If the child is Aboriginal or Torres Strait Islander, the Court must consider the child’s right to enjoy their culture by having the support and opportunity to connect and maintain their connection with their family, community, culture, country and language and the likely impact any proposed parenting order will have on that right.

3. Reconsidering Final Parenting Orders

The amendments codify the rule in Rice v Asplund (1979) FLC 90-725, which provides that where there are final parenting orders in place, a person must establish that there has been a “significant change in circumstances” since the making of the orders before those orders can be reconsidered.

The amendments include a new section which provides that the Court must not reconsider a final parenting order unless a significant change in circumstances since the making of the order has been established and that it is in the best interests of the child for the order to be reconsidered. This is likely to make it more difficult to vary final parenting orders since even if there is a significant change in circumstances, the Court will not reconsider the orders if they are not satisfied that it is in the best interests of the child to do so.

In considering whether it is in the best interests of the child for the order to be reconsidered, the Court may have regard to any matter it considers relevant, including:

1. The reasons for the final parenting order and the evidence available to the Court at the time it was made;
2. Whether there is any new evidence available that was not available when the Court made the final parenting order;
3. The likelihood that if the final parenting order is reconsidered, the Court would make an order in significantly different terms;
4. The potential benefit or detriment to the child as a result of reconsidering the final parenting order.

Despite these amendments, the Court may reconsider a final parenting order if both parents agree to vary the order.

4. The role of Independent Children’s Lawyers (ICLs)

An Independent Children’s Lawyer may be appointed by the Court to represent and promote the best interests of a child in family law proceedings. Under the current regime, ICLs have discretion as to whether they meet with the child whose interests they are appointed to represent and provide them with an opportunity to express their views on matters relating to the proceedings. ICLs also have discretion on whether they advise the Court of any views of the child.

The amendments include a requirement for ICLs to meet with the child and provide them with an opportunity to express their views before final orders are made unless certain exceptions apply. An ICL is not required to meet with the child if the child is under 5 years old, does not want to meet with the ICL or express their views or if there are exceptional circumstances that would justify not meeting with the child, such as where meeting the child would expose them to a risk of physical or psychological harm that cannot be safely managed. If the Court is not satisfied that exceptional circumstances exist, they will make an order requiring the ICL to meet with the child and provide them with an opportunity to express their views.

The ICL has discretion in relation to the time, frequency and method of meeting and ascertaining the views of the child. If the child expresses a view in relation to matters which relate to the proceedings, the ICL is required to put these views before the court.

If you need any assistance in relation to the amendments to the Family Law Act, you are most welcome to contact one of our experienced family lawyers to see how we can assist.