Family Law Changes Effective 6 May 2024: What You Need to Know

KEY TAKE OUTS:

• As of 6 May 2024, the Family Law Amendment Act 2023 (Cth) (FLAA) is now in operation with the aim to streamline the family law court system and prioritise the best interests of the child at all times.
• Parents are no longer presumed to share equal parental responsibility, empowering Courts to order joint or sole decision making based on the child’s best interest.
• Clearer guidelines for advisors, codification of common law principles and an attempt to create a simpler approach drives the large change to the Family Law Act.

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In October 2023, the Parliament passed the Family Law Amendment Act, which has taken effect on 6 May 2024.

The aim of this amendment is to make the family law court system fairer and simpler for families experiencing separation, to ensure the best interest of the children at all times.

What amendments have been made?

These amendments set out new laws about:

• What a court must consider when determining what is in the child’s best interest, and
• How separated parents are to make decisions about long-term issues for their children.

What the court will consider is the ‘best interest of the child’?

Amendment to section 60CC – Best Interests of the Child

This section previously listed 16 factors to be considered by the Court when assessing a child’s best interests. These factors were grouped into “Primary Considerations” and “Additional Considerations”.

The Act now sets out a new list of factors that a court must consider when determining the best interests of the child:

The new list is located at subsection 60CC(2) and reflects the six core factors discussed above which was recommended by the Australian Law Reform Commission in its 2019 report on the family law system. This updated list does not have a hierarchical order and there is no longer a distinction between ‘primary’ and ‘additional’ court discretion when considering circumstances in each matter in a way that places the best interests of the child at the forefront of any decision-making.

Further, the new subsection 60CC(2A) highlights that family violence orders and past family violence, abuse and neglect will be of relevance in determining future parenting arrangements.

The factors which will be decided in parenting arrangements about the best interest of the children, including:

• The safety of the child and people who care for the child (including history of family violent and family violence orders);
• The child’s own views;
• The developmental, psychological, emotional and cultural needs of the child;
• The capacity of each person who will be responsible for the child (including being able to provide for the child’s developmental, psychological, emotional and cultural needs);
• The benefit to the child of having a relationship with their parents, and other people who are significant to them (for example grandparents and siblings), and
• Anything else that is relevant to the circumstances of the child.

If the Court is making orders regarding an Aboriginal and/or Torres Strait Islander child, a consideration of how parenting arrangements will help the child experience their Aboriginal and Torres Strait Islander culture will be relevant.

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How parents are expected to make long-term decisions about their children

Before the recent amendments, parents would retain parental responsibility for their child/children under section 61DA. As of 6 May 2024, this section has been repealed and replaced with section 61DAA, the presumption of equal shared parental responsibility will no longer be applied. The Court now has the ability to order that decisions be made jointly or that one parent will have sole decision making for some or all of the major long-term decisions which is defined in section 4 of the Family Law Act to include LIST.  If the Court makes an order for this, parents are required to make a genuine effort to consult with their co-parent to reach an agreement.

New sections regarding joint decision-making

Due to the removal of the presumption, the Act now provides further guidance for parents on consultation on major long-term issues, and the Courts powers to make orders which deal with the allocation of responsibility for making decisions about these issues.

• Section 61CA adds that parents of a child are encouraged to consult the other as to major long-term issues and when doing so, have regard to the best interests of the child.
• Section 61D(3) makes it clear that Courts will still make orders relating to the allocation of parental responsibility.

Section 61DAA provides that for joint decision making in respect to major long-term issues requires a party to consult the other in relation to the decision and make a genuine effort to come to a joint decision.

These new laws encourage parents who do not already have court orders to consult with one another on major long-term issues and make decisions for the best interest of their child.

If I have existing parenting orders will the new law change these?

No, any existing parenting orders will not be automatically changed with the new law change. If existing parenting orders are in place, people are expected to continue to follow these.

Removal of mandatory consideration of certain time arrangements

Section 65ADD previously obligated the Court to consider whether a child spending equal time with each parent was in the child’s best interests and reasonably practicable (and if not, whether substantial and significant time with each parent was in the child’s best interests and reasonably practicable), if making an order for equal shared parental responsibility.

Advisor obligations

Amendments have also been made to the obligations of advisors in sections 60D and 63DA. ‘Advisors’ are defined as legal practitioners, family counsellors, family dispute resolution practitioners or family consultants. With the amendments to section 60CC this section reflects that advisors must:

• Note to their client that the best interests of the child are paramount, and
• Encourage the person to act in the child’s best interests by applying the considerations set out in subsections 60CC(2) and (3).

Due to the repeal of section 65DAA, there is no longer an obligation to advise parents to consider the possibility of the child spending equal time with each parent or significant time.

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The codification of Rice v Asplund [1979]

Under the new section of 65DAAA, it sets out when a parenting order can be reconsidered by a Court and codifies the common law principle in Rice v Asplund [1979].

A court must not reconsider a final parenting order unless:

• The Court has considered whether there has been a significant change of circumstances since the final parenting order was made, and
• The court is satisfied that it is in the best interests of the child for the parenting order to be reconsidered.

If the court is not satisfied with these two requirements, the final parenting orders will not be changed.

Schedule 2: Enforcement of child-related orders

Division 13A of Part VII of the Family Law Act has also been redrafted to make consequences of non-compliance with parenting orders clearer and easier for the Court’s to apply.

This redraft made a number of policy changes but does not significantly change the underlying principles of the compliance and enforcement provisions.

The policy changes are:

• Removing specific cost order provisions from Division 13A
• Removing the power for the Court to make Community Service Orders in cases of non-compliance, and
• Clarifying that the Court may order a child spend additional time with a person, vary a parenting order, or order parties to attend a contravention proceeding without necessarily making a finding on a contravention.

This redraft also contains a broad range of sanctions that the Court is able to apply when orders are not complied with. However, the existing law which says where there is a ‘reasonable excuse’ for contravention of orders to be excused, including in circumstances where there are safety concerns has been kept.

Independent Children’s Lawyers

ICLs will be required to meet with the children and provide the children with an opportunity to express a view unless an exception applies.

By introducing this provision, it will allow the children the opportunity to express their views which can be of significant important to children and can assist in determining their best interests.

This new legislation specifically provides that an ICL has discretion in relation to when, how often and how meetings with the child take place and when, how often and how the child is provided with an opportunity to express views under subsection 68LA(5AA). This discretion is subject to any order or direction of the Court. Under this provision, an ICL will not be required to perform a duty if the child is under 5 years of age or if the child does not want to meet with the ICL or express their views.

Depending on the facts and circumstances of each case, there is no specific time in which an ICL must perform these duties, it is only required that they will be performed at some point prior to the court making final orders.

CONCLUSION:

The Family Law Amendment Act clearly represents major reform aimed at simplifying the current Family Law court system. Whether this is the case or not, by removing the presumption of equal shared parental responsibility and introducing the concept of decision-making the Court has more discretion in regard to final parenting orders. Although major changes have occurred, the best interest of the child remains paramount ensuring this is considered in all circumstances of the matter.

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