What are the changes?
In October 2023, the Family Law Amendment Act was passed which is due to take effect from 6 May 2024 and introduces a number of major amendments to the Family Law Act which will change the way the Courts approach parenting matters.
These changes in summary are as follows:-
1.The removal of the presumption of “equal shared parental responsibility”
Previously, there has been a legislative presumption that it is in a child’s best interest for each of their parents to have equal parental responsibility for long term decision making (including decisions such as education, medical, religion and name etc).
Shortly, these amendments will remove this presumption and instead focus on customising arrangements based on the circumstances and in consideration of the best interests of the child specifically. This could mean that one parent will be given sole parental responsibility in relation to one type of decision and shared responsibility for other specific issues.
However, it is likely that parents will continue to be encouraged to consult each other in relation to all major long-term decisions.
2. Revised definition for the “best interests of the child”
To date, the Courts have informed themselves as to the child’s best interests by consideration of a number of “primary” and “additional” considerations set out in section 60CC of the Act.
However, upon commencement of these changes the Court will adopt a simplified set of factors under section 60CC of six “general considerations” and two “further considerations” (if a child is of Aboriginal or Torres Strait Islander descent).
The six general considerations when determining the best interests of the child will be as follows:-
- The need to promote the safety of the child and each person who has care of the child, whether or not this person has parental responsibility for the child.
- Views of the child.
- The emotional, developmental, psychological and cultural needs of the child.
- The capacity of the person proposed to have parental responsibility to provide for those aforementioned needs
- The benefit of the child having a relationship with their parents and other significant persons in the child’s life.
- Any circumstances relevant to the best interest of the child
The two further considerations are:-
- The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to connect and maintain their connection with members of their family, community, culture, language and country.
- The likely impact of any proposed parenting order on the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.
These considerations will have no hierarchy and the Court will remain empowered by discretion to place any weight deemed appropriate to any certain consideration.
3. Introduction of grounds for making changes to final parenting orders
The new changes will specify that the Court may only entertain a new application after final parenting orders have been made only if:-
a) There has been a significant change in circumstances AND
b) It is in the best interests of the child for the final orders to be reconsidered OR
c) There is an agreement from all parties to the final orders regardless of significant change in circumstances or best interest of the child.
4. Amendments to the role of the Independent Children’s Lawyer (ICL)
The amendments will require that where an ICL is appointed from 6 May 2024 they will have an obligation to meet with and speak with the child subject to the proceedings.
Previously, an ICL could speak with the children if they considered it appropriate, whereas from 6 May 2024 it will be a requirement save for a certain exceptions, such as the child being under the age of 5, or does not wish to meet with the ICL.
Will these changes affect my existing parenting orders?
The answer is no.
These changes to the Family Law Act will not apply retrospectively.
Therefore, your existing parenting orders will only be capable of being revisited if it is by agreement or there has been a significant change in circumstances, and it is in the child’s best interests.
Undoubtedly there are often differing views between parents about what is in their child’s best interests. Time will tell how the Court’s apply these changes in practice.
If however, you find yourself in the situation where you need assistance in working through parenting arrangements after separation, our Solicitors are highly experienced and are ready to assist.
Contact us on 02 4655 4224 to arrange a confidential consultation.
