If you have a parenting matter currently before the Court, or are about to institute proceedings for parenting orders, changes to the Family Law Act 1975 (Cth) which came into effect on 6 May 2024 will apply and may have a significant impact on your matter.
This article summarises the changes to the law which will apply to parenting applications to be filed with the Court after 6 May 2024 and those currently before the Court awaiting determination.
The enactment of the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 will change the landscape of family law in parenting matters, substantially. The amendments bring about significant changes to parenting matters and information sharing concerning family violence and child protection.
There are several noteworthy changes to the Family Law Amendment Act 2023 (“the Act’), which are summarised as follows:
- New “best interests” considerations
The Best interest’s considerations are the cornerstone of parenting decisions by a court.
The factors to be considered now includes a shorter list of considerations. Instead of the previous distinctions of ‘primary’ and ‘additional’ considerations, there are now 6 ‘general considerations’ and 2 ‘further’ considerations (specifically for cases involving children of Aboriginal or Torres Strait Islander descent).
Whilst the Court can still exercise discretion as to how the considerations are applied, the refined list enables the Court to assess and consider the unique circumstances in each parenting matter in a way that places the best interests of a child at the forefront of the decision-making process.
The core list of considerations are the following:
- 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.
This list is far more palatable and concise and may provide clarity to parents and practitioners as to how a court may determine these aspects so as to make orders in the best interests of the children.
- The removal of the presumption of equal shared parental responsibility
The removal of the presumption of equal shared parental responsibility means that the Court is no longer required to presume that it is in the best interests of the child for parents to make joint decisions in relation to major long-term issues pertaining to the child. Major long-term decisions include things such as medical, educational, cultural, and religious decisions. It also touches on the living arrangements of the children.
The removal of the presumption of shared parental responsibility may now result in the Court making more orders for sole parental responsibility, particularly in circumstances where one parent is the primary carer. The Court will now also move away from the requirement to make orders for “equal time or “substantial and significant time” previously required due to the equal shared parental responsibility presumption and rather focus on what is in the best interests of the child in each particular case.
Whilst the Act still encourages parents to consult with each other about major long-term decisions, provided it is safe to do so, such process is not enforceable.
The Act has also expanded the definitions of ‘relative’ and ‘member of the family’, to include Aboriginal and Torres Strait Islander concepts of family.
- Information Sharing
The Family Law Amendment (Information Sharing) Act 2023 now provides for the sharing of information related to family violence, child abuse, and neglect amongst relevant agencies such as State and Territory child protection, police and firearms agencies This was previously limited by statutory provisions at the State and Territory level limiting the information that the Court was able to obtain, particularly with respect to any potential risk factors. There are also safeguards in place to protect the identities of persons reporting family violence or child abuse.
- Independent Children’s Lawyers
The amendments to the Act now include provision for an Independent Children’s Lawyer to meet with the child (over the age of 5 years) and give the child an opportunity to express a view. It is however important to note that an Independent Children’s Lawyer will not be required to perform a duty if there are exceptional circumstances that justify it, including exposing the child to a risk of physical or psychological harm.
The amendments provide for a significant shift in Australian family law. People involved in family law proceedings, or facing family violence issues, should familiarise themselves with the changes. Seeking legal advice and understanding the implications of these amendments can help you navigate the complexities of family law parenting proceedings.
If you are currently going through a separation and require advice in relation to your parenting arrangements moving forward, we recommend that you contact one of our experienced family lawyers who will be able to provide you with specialised and tailored advice about your matter.
