If you’re navigating a divorce or separation, or dealing with custody or other parental family law concerns, you’ve come to the right place. With the recent Family Law Amendment Act 2023, there are significant changes that could impact your situation and understanding these amendments is crucial to making informed decisions.
Luckily it’s our job to understand the family law changes that might impact you and help you find the best path forward for you and your family.
The Family Law Amendment Act 2023 (the Act) was passed on 19 October 2023, receiving Royal Assent on 6 November 2023. The Act introduces pivotal changes which will apply from 6 May 2024.
The main focus of these amendments is to ensure that the best interests of children are at the forefront of all decision-making in family law, both inside and outside the courtroom.
So what are those key family law changes and how might they impact you?
One of the major changes the Act introduces is a streamlined process for making interim and final parenting orders. This new streamlined process removes the presumption of equal shared parental responsibility and instead focuses primarily on the child's best interests (both in and out of court).
Historically, the presumption when applied would assume that equal shared parental responsibility would also mean equal with each parent. This assumption is no longer the case. Instead, they’ll look to what makes the most sense for the children themselves, and get the best outcomes for their unique situation.
Interestingly, this new process reverts to procedures similar to those before the 2006 amendments.
Another change created by the Act is the drastic simplification of the criteria for determining a child's best interests. The old criteria included an exhaustive list of what defined a child’s best interest, such children will benefit by having a ‘meaningful relationship’ with both of their parents. It also allowed for ‘primary and 'additional' considerations that would be considered.
Now protecting the child from harm is given the utmost importance. As this new simplified criteria is very much like the pre-2006 amendment language it’s highly likely the court will also treat it in a similar way. That means they’ll simply consider any factors that arise out of the facts of the case and use those to determine the best interest of the child based on all the facts.
When it comes to parental responsibility, the Act has now removed the concept of 'equal shared parental responsibility'. The terms that the new Act uses are 'sole parental responsibility' and 'joint parental responsibility'.
So what does this mean? The court will simply look at what parental responsibility arrangements will best serve the child’s best interests. They’ll then decide whether one parent should have sole parental responsibility or if both parents should share the responsibility (joint parental responsibility). The shared responsibility could be 60/40, 50/50 or even 90/10 depending on the individual circumstances and what is in the child’s best interests.
The family court has always had a presumption of cooperation. They expect couples to have tried mediation or some other form of dispute resolution prior to coming to the court for orders relating to divorce or separation. In the same vein, parents are now encouraged to work together first to find an answer or solution to any long-term issues relating to their children.
The court’s main focus is simply to keep the best interests of the child as a ‘paramount consideration’. They expect both parents to do so as well as they work together for the benefit of their kids.
In Rice & Asplund estranged parents made various applications and appeals each to gain more custody or access to their shared child. In one final appeal, which was the issue in this case, an earlier parenting order was overturned giving the wife greater custody. However, there was no real change in the family circumstances between the two orders.
In this case the full court of the Family Court of Australia determined that a court can only reconsider final parenting orders where there’s been a significant change in circumstances or if it will be in the best interests of the child.
This has long been the standard that the court uses when determining when to set aside a parenting order. The new Act formalises the principles set out in Rice & Asplund so that this rule is clear and applied consistently across the board.
The amendments in the Act also simplify enforcement procedures in the case of a breach of parenting order. A breach happens whenever one parent doesn’t follow the rules that are set out in the order. This could be allowing the child to spend time with the other parent, or failing to make monetary payments, for example.
Under the previous rules the procedures that would need to be undertaken when a breach occurred depended on the seriousness of the breach. But this is no longer the case. Now, as with the other amendments, any enforcement decision made by the court needs to emphasise the welfare of the child.
In response to long-standing critiques, the Act expands the definition of 'family members' and 'relatives' for Aboriginal and Torres Strait Islander families. Now the law recognises diverse kinship systems.
This means that a ‘relative’ of a child will now include any relative for the purposes of an Aboriginal or ATSI kinship system which will better represent the best interest of those children in any family law decisions.
Independent children’s lawyers (or ICLs) are appointed by the court to ‘represent and promote the best interests of a child in family law proceedings’. The Act introduces significant changes to the duties of ICLs and their interactions with children, including the requirement to meet with children and give them the opportunity to express their own views.
Some duties have also been repealed, including the requirement of the ICL to keep communications between the child and the ICL confidential. This means that the ICL has discretion to tell the court what a child has said if it believes it’s in the best interests of the child to do so.
There’s no doubt that the alterations in their duties will have a profound effect on how ICLs interact with children and other parties in family law cases. And that this could have a profound effect on the outcomes of family law proceedings.
New provisions enable courts to prevent harmful legal actions, which demonstrates family law’s focus on protecting the psychological and financial well being of parties and children.
The Family Law (Information Sharing) Bill was also passed in October 2023. Its goal is to improve information gathering and sharing between family law, family violence and child protection systems and give more protection to children and families at risk of family violence.
The Act has brought changes that mark a shift towards prioritising children's safety and well being in family law proceedings. The regulations themselves are simplified but allow a more tailored approach to each family's unique circumstances.
As these changes will come into effect from May 2024, it's essential for families and legal practitioners to understand their implications. Our team would love to help!
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