Significant amendments to the Family Law Act effective May 2024

Several modifications are set to reshape the Family Law Act (referred to as the Act), impacting the approach of the Federal Circuit and Family Court of Australia towards parenting matters.

This blog delves into four key alterations to the Act and their potential implications for your family law parenting matter:

1. Elimination of the presumption of ‘equal shared parental responsibility’;
2. Introduction of a new definition for the ‘best interests of the child’;
3. Grounds for modifying final parenting orders; and
4. Changes to the role of the Independent Children’s Lawyer.

The Family Law Amendment Act, which received parliamentary approval on 19 October 2023, is slated to become applicable to all family law matters initiated after 6 May 2024.

Will my current parenting orders be changed?

The modifications to the Act operate on a non-retrospective basis. This implies that the new law is only relevant to cases determined by the Court after 6 May 2024 and does not extend to matters adjudicated before this date. Consequently, the legislative amendments do not automatically reexamine parenting matters that have already been concluded.

Four key changes to the Family Law Act from May 2024

The revisions to the Family Law Act are designed to enhance the safety and simplicity of the family law system for separating families, with a primary focus on placing the best interests of children at its core.

Numerous adjustments are being implemented within the Act, encompassing alterations to language usage and the nature of legislative authority granted to Judicial Registrars and Judges. Additionally, significant substantive modifications are being introduced to the Court’s approach to handling parenting matters.

1. Removing the presumption of ‘equal shared parental responsibility’ and reference to ‘substantial and significant time’

Starting from May 6, 2024, the legislative ‘presumption’ favoring equal shared parental responsibility for long-term decision-making concerning children’s welfare will no longer be in effect. The Court will now be more receptive to personalized arrangements for parental responsibility. For instance, it may become increasingly common for one parent to assume ‘sole parental responsibility’ for a specific issue while sharing parental responsibility for other matters.

Additionally, the concept of ‘substantial and significant time’ will no longer find mention in the legislation. The practical implications of these changes will become apparent over time as the Court applies the new laws to specific situations.

Despite these alterations, parents are still encouraged to engage in consultation regarding major long-term decisions concerning their children. The paramount consideration in such discussions should always be the best interests of the children involved.

2. A new definition for what is in ‘the best interests of the child’

As of May 6, 2024, the paramount consideration in determining the best interests of the child remains unchanged: arrangements for children must prioritize their welfare, independent of the parents’ interests.

Under the revised Family Law Act, the Court will no longer be obligated to consider ‘primary’ and ‘additional’ considerations but will focus on six ‘general considerations’ and two ‘further considerations’ for Aboriginal or Torres Strait Islander children. This non-hierarchical structure emphasizes a core set of considerations to best promote the child’s well-being, without assigning greater weight to any particular factor.

The six general considerations include:

1. The need to promote the safety of the child and caregivers, irrespective of parental responsibility, encompassing protection from family violence, abuse, neglect, or harm.
2. Any views expressed by the child.
3. The developmental, psychological, emotional, and cultural needs of the child.
4. The capacity of individuals with or proposed to have parental responsibility to meet the child’s developmental, psychological, emotional, and cultural needs.
5. The benefit to the child of maintaining relationships with parents and significant individuals, where safe.
6. Any other relevant circumstances specific to the child.

When deciding what is best for the child, the Court will prioritize protecting the child from harm over the benefit of having a meaningful relationship with both parents.

Further considerations specific to Aboriginal or Torres Strait Islander children include:

1. The child’s right to enjoy their culture by connecting with family, community, culture, country, and language.
2. The likely impact of proposed parenting orders on the child’s cultural rights.

The legislative objectives include ensuring the child’s best interests are met, with a focus on safety and compliance with the Convention on the Rights of the Child. It is emphasized that if the Family Law Act deviates from the Convention, the Act will prevail.

3. Making changes to final parenting orders

Starting May 6, 2024, the Court will only consider new applications after final parenting orders are issued about children under specific circumstances:

1. If there is a “significant change in circumstances” and it is in the child’s best interests for the Final Order to be reconsidered, OR
2. If all parties agree to reconsider the final order, even without a significant change of circumstances or if it is not in the child’s best interests.

It is generally acknowledged that ongoing litigation over a child is not in their best interests, a principle originally established in the rule set by Rice v Asplund, which is now formally codified under the Act after May 6, 2024.

When deciding whether to entertain a new application after final parenting orders are made about children, the Court may consider the following factors:

1. The reasons for the Final Order and the evidence on which it was based.
2. The availability of any new material that was not presented to the Court that made the Final Order.
3. The likelihood that reconsidering the Final Order will result in a new parenting order significantly affecting the Final Order.
4. Any potential benefits or drawbacks to the child resulting from reconsidering the Final Order.

4. Independent Children’s Lawyers

An Independent Children’s Lawyer (ICL) serves as an impartial and independent party in family law proceedings, particularly when children are not allowed to attend court. The role of an ICL involves representing the best interests of the child in family law matters, and they are appointed by the Court when an independent assessment of the child’s best interests is needed.

Effective from May 6, 2024, if an ICL is appointed in a case, the legislation mandates that the ICL must meet with and speak to the children involved in the proceedings. Unlike the previous legislation, where ICLs could choose to speak with the children if deemed appropriate, it is now a requirement, except in specific circumstances:

1. If the child is under the age of 5 years (unless considered appropriate).
2. If the child does not wish to meet with the ICL or express their views.
3. In cases of ‘exceptional circumstances’ where such a meeting could expose the child to psychological harm that cannot be safely managed.

The practical implications of these changes and how the Courts will implement them, along with their effects on families, are yet to be fully understood. Uncertainty will persist until such time as the Courts decide cases in alignment with the new legislation.