There are a number of amendments that will alter the Family Law Act ( the Act ) and change the way the Federal Circuit and Family Court of Australia approach parenting matters. In this blog, we explore four primary changes to the Act and how they may impact your family law parenting matter:
The Family Law Amendment Act passed Parliament on 19 October 2023 and will take effect in relation to all family law matters after 6 May 2024.
The changes to the Act do not apply ‘retrospectively’. This means the new law is only applicable to matters that are decided by the Court after 6 May 2024 , not before.
As such, the legislative changes do not automatically ‘open up’ parenting matters that have already been finalised.
The amendments to the Family Law Act aim to make the family law system safer and simpler for separating families to navigate and ensure the best interests of children are placed at its centre.
Many changes are being made to the Act, including changes to the language used and the types of legislative power given to Judicial Registrars and Judges. There are also major substantive changes to how the Court will deal with parenting matters.
As of 6 May 2024, there will no longer be a legislative ‘presumption’ that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility in relation to the long-term decision-making for the children.
Instead, the Court may now be more open to more tailored arrangements for parental responsibility. For example, it may become more common for a parent to have ‘sole parental responsibility’ for a specific issue and shared parental responsibility for the remaining issues.
There will also no longer be any reference to ‘substantial and significant time’ under the legislation.
Ultimately, it will be some time before we see how the Court will apply these new laws to specific circumstances and see what the practical effect of them will be.
Parents will, as always, still be encouraged to consult with each other about major long-term decisions in relation to their children and when doing so, having regard to the children’s best interests as the paramount consideration.
The most important consideration in relation to determining the best interests of the child will remain the same as it was previously – that arrangements for children must be made in their best interest and not the interests of the parents.
From 6 May 2024, the Family Law Act will no longer require the Court to consider ‘primary’ and ‘additional’ considerations when determining what is in a child’s best interest. Instead, there will be six ‘general considerations’ and two ‘further considerations’ (applicable only if a child is Aboriginal or Torres Strait Islander).
The new structure is non-hierarchal and focuses on a core list of considerations to best promote the child’s welfare and development. The Court is not required to give more weight to any one factor over the others, although the Court still has the discretion to place whatever weight they deem appropriate to a certain consideration.
The six general considerations when determining the best interests of the child are:
When determining what is best for the child/children, the Court will give greater weight to the need to protect a child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence over the benefit to a child of having a meaningful relationship with both parents. This has always been the case, and this approach will continue under the new legislation.
The further considerations under the Family Law Act specific to Aboriginal or Torres Strait Islander children are:
The objects of this legislation are:
It is important to note that to the extent that the Family Law Act departs from the Convention on the Rights of the Child , the Family Law Act will prevail.
From 6 May 2024, the Court may only entertain a new application after final parenting orders are made about children if:
It is generally the case that continued litigation over a child is not in their best interests. This principle was first established as the rule in Rice v Asplund , and following 6 May 2024 has been codified under the Act.
The changes to the Act provide that the Court may have regard to the following factors when considering whether to entertain a new application after final parenting orders are made about children:
An Independent Children’s Lawyer (ICL) is an independent, impartial party to family law proceedings.
As children are not allowed to attend court, sometimes an ICL will be appointed to represent the child’s best interest in a family law matter. A Court will appoint an ICL when it needs to hear an independent assessment about the child/ren’s best interests.
If an ICL is appointed in a matter from 6 May 2024, the ICL will have an obligation under the legislation to meet with and speak with the children that the proceedings relate to.
While under the old legislation, ICLs could speak with the children if they considered it appropriate to do so, it will now be a requirement unless:
Ultimately, how the Courts will adopt these changes and, in turn, what practical effect these changes will have on families is still yet to be seen. There will continue to be an element of uncertainty until such time as matters are decided by the Court in line with the new legislation.
It’s not unusual for parents to have different views about what is in their child’s best interests, and the ambiguity that will accompany these legislative changes is likely to cause further uncertainty.
If you’re working through parenting arrangements after separation and you need assistance to ensure the best interests of the children are being protected, our family lawyers have significant expertise and experience in all aspects of parenting disputes.
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Smith Family Law.
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Jane Holford
