From 6 May 2024, a number of changes to the Family Law Act 1975 (Cth) (“the Act”) will come into effect. Following an inquiry by the Australian Law Reform Commission into Australia’s family law system, in November 2023, the Family Law Amendment Bill 2003 received Royal Assent.
The amendments to the Act are aimed at making the family law system “safer and simpler”. The principle of the best interests of a child will continue to be at the forefront of the Act, however, amendments to the current legislative approach to making parenting orders will be implemented. The changes will apply to all new and existing proceedings from that date, except for a final hearing commenced by that date.
Important changes
Repeal of the Presumption of Equal Shared Parental Responsibility
One of the most significant changes to the Act is the decision to repeal the presumption of ‘equal shared parental responsibility’. The presumption has been a major component of the family law system since being introduced into the Act in 2006. The intention of the removal of the presumption is to ensure the focus in family law matter remains on the “best interests of children”, particularly in matters involving allegations of family violence.
The Court will still have the power to make orders for “joint” decision-making about long-term issues in relation to a child when considering the allocation of parental responsibility, however, this will be dependent on what the Court considers is in the child’s best interests.
Changes to how the Court is to determine what is in a child’s best interests
Section 60CC of the Act sets out how the Court determines what is in a child’s best interests. Currently, this is determined by an examination of the primary and additional considerations listed at section 60CC. The primary considerations are currently:
- The benefit of the child having a meaningful relationship with both their parents; and
- The need to protect the child from physical harm from being subjected to or exposed to abuse neglect or family violence.
The Act currently provides a long list of “additional considerations” to be considered subsequent to the primary considerations. The changes to section 60CC include a reduction of the list of additional considerations and a removal of the existing two-tier framework of ‘primary’ and ‘additional’ considerations. The aim being to reduce the length and complexity of the considerations which has said to “detract from the focus on the best interests of the child.”
The amendments to section 60CC also remove the mandatory consideration of specific time arrangements. Instead the Court is required to take into account the following “general considerations”:
- What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
a. the child; and
b. each person who has care of the child.
In considering this factor, the Court must consider any history of family violence, abuse or neglect involving the child or any person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family
2. Any views expressed by the child.
3. The developmental, psychological, emotional and cultural needs of the child;
4. 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;
5. The benefit of the child 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.
6. Anything else that the Court thinks is relevant to the particular circumstances of the child.
In determining what is in a child’s best interests, where the child is an Aboriginal or Torres Strait Islander child, the court must also consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to do so.
Where the Court reconsiders final parenting orders
The amendments provide for statutory recognition of the common law rule of Rice and Asplund[1], which provides that when final parenting orders have been made, “there must be a significant change of circumstances since the making of the orders” before the Court will reconsider and vary those orders. The Court may, however, reconsider final parenting orders with the consent or agreement of all parties to the final parenting orders.
Focus on compliance and enforcement of parenting orders
The amendments attempt to clarify the current provisions pertaining to non-compliance with parenting orders.
In addition, the Court will be given broader powers to order ‘make-up’ time or ‘compensatory time’ where a parent has not spent time with a child due to non-compliance. This is to assist in rebuilding the relationship between the child and parent that may have been lost due to the contravention.
One of the main objectives of these amendments is to deter non-compliance without reasonable excuse. The amendments also repeal the previous provisions which provided for ‘less serious’ and ‘more serious’ contraventions and clearly sets out the courts power to impose appropriate sanctions on a respondent who seriously or repeatedly contravenes a child-related order.
Summary
In summary, the following major changes will come into effect:
- Removal of the presumption of “equal shared parental responsibility”.
- Change of “equal shared parental responsibility” to “joint decision making about major long-term issues”.
- A change to the list of factors as to “how the court determines what is in a child’s best interests”.
- Codification of the common law rule of Rice and Asplund.
- The requirement for Independent Children’s Lawyers to meet with children aged 5 and over, unless the child does not wish to do so.
- Increased power to the court to protect parties and children from the harm associated with protracted litigation.
- Greater focus on ensuring compliance with parenting orders.
- The requirement for the Court, in matters involving Aboriginal and Torres Strait Islander children, to consider the child’s right to “connect with, and maintain their connection with, members of their family”. The amendment includes a definition of “member of the family” by amending the definition of “relative” in the Act to include persons who are “related to the child”.
Family Law Advice
Dorter Family Lawyers & Mediators is aware that these important changes to the Family Law Act 1975 may appear complicated and confusing. If you are in the process of separating, or require advice on a family law matter, we are well-versed in all areas of family law and can assist you.
Click here to view the Family Law Amendment Act 2023