The Federal Parliament passed the Family Law Amendment Act 2023 on 19 October 2023. The changes commenced on 6 May 2024. The purpose of the changes is to make the family law system safer and simpler, ensuring that the child’s best interests are at the centre of the system.
What has changed?
The amendment makes changes to the following areas:
- Parenting framework (Best interests of children and parental responsibility)
- Reconsideration of Final Parenting Orders
- Enforcement of child-related orders
- Delegations (powers of registrars)
- Definition of a member of the family
- Obligations of Independent Children’s Lawyers
- Harmful proceedings orders
- Overarching purpose of the family law practice and procedure provisions
- Communication of details of family law proceedings
I’ve already commenced proceedings – will I be affected?
Most likely. The changes apply to all new and existing proceedings from 6 May. The only exception to this is when a final hearing has already begun, however, some changes will apply even when a final hearing is in progress.
The requirement for parents to consult on major long-term issues (where safe to do so) will apply even when a final hearing has commenced. Courts will also have the power to make harmful proceedings orders even if a final hearing is underway. Finally, the practice and procedure provisions will apply irrespective of whether a final hearing has commenced.
These requirements, and other key changes, are explained below.
Best Interests of the Child
When a court makes parenting orders, the best interests of the child are its paramount consideration. The amendment changes the factors that the court must consider when determining the best interests of the child.
The amendment removes the division between primary and additional considerations. This change is meant to allow the court greater flexibility to consider the circumstances of each child and make a decision that places their best interests at the forefront of decision making. The considerations have been shortened and can be summarised as follows:
- what arrangements would promote the safety of the child and each person who has care of the child
- any views expressed by the child
- the developmental, psychological, emotional and cultural needs of the child
- the capacity of the parent/carer who is proposed to have parental responsibility for the child 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 the child (where safe)
- anything else that is relevant to the particular circumstances of the child
- any history of family violence, abuse or neglect or any family violence order (past or present) that has applied to the child or a member of their family
There are additional considerations if the child is Aboriginal or Torres Straight Islander. These are explored below.
Presumption of Equal Shared Parental Responsibility
The amendment has removed the presumption of equal shared parental responsibility. Previously, the court had to presume that it was in the best interests of the child that the parents jointly make decisions about major long-term issues such as education, health and living arrangements. It was commonly misunderstood as a presumption that parents should have equal time with their children.
As the presumption has been removed, the amendments introduce guidelines for parents on consultation on major long-term issues. They also guide the court on its powers to allocate responsibility for decision making on these issues.
Parents are encouraged to consult one another about major long-term issues that would affect the child, unless it is not safe to do so. Any consultation should be focused on the best interests of the child. These recommendations are not enforceable but provide guidance if there is no order from the court about decision making.
The amendment makes clear that courts still have the power to make orders relating to the allocation of parental responsibility (joint decision making on major long-term issues). If the court makes an order about joint decision making on major long-term issues, the parties must consult with one another and make a genuine effort to reach a joint decision.
Changes for Aboriginal and Torres Strait Islander children
The amendment introduces specific changes for Aboriginal and Torres Strait Islander children.
When considering the best interests of an Aboriginal or Torres Strait Islander child, the court must consider their right to maintain a connection with that culture and have the support, opportunity and encouragement necessary to explore their culture and develop a positive appreciation of that culture.
The amendment also expands the definition of family to include Aboriginal and Torres Strait Islander concepts of family, expanding the definition of ‘relative of a person’ to include family such as kinship groups. This expansion applies to the definition of ‘a relative of a child’, the definition of a step parent, the definition of family violence and when the court is considering the best interests of an Aboriginal and Torres Strait Islander child.
The Family Law Act places obligations on members of a child’s family to inform the court of family violence orders, care arrangements under child welfare laws or child welfare investigations, notifications or reports affecting the child or another child in the family. The expanded definition of family does not apply to these sections.
Reconsideration of Final Parenting Orders
The amendment codifies the common law rule in Rice v Asplund which provides when final parenting orders can be appealed.
A court will not reconsider a final parenting order unless there has been a significant change in circumstances or the court is satisfised it is in the best interests of the child for the order to be reconsidered.
Harmful proceedings orders
The amendment gives the court the power to make harmful proceedings orders, either of its own initiative or on application by a party to the proceedings.
A court would only make the order if it is satisfied that further proceedings would be harmful to the respondent. Harm may be psychological or financial, and includes major mental distress and behaviour that may have a detrimental effect on the other party’s capacity to care for a child.
Independent Children’s Lawyers
Significant changes to the role of Independent Children’s Lawyers (ICLs). Please see our blog post here explaining what ICLs are and how their role has changed since 6 May 2024.
Increased Powers for Registrars
The amendment delegates new powers to registrars, allowing them to make a further parenting order for a child to spend additional time with a person (a make-up or compensatory time order).
Communication of details of family law proceedings
This section is not changed in substance – the language has been simplified, making it clearer as to when identifiable family law information can be shared.
Overarching purpose and procedure
The amendment inserts an overarching purpose into the act which emphasises the facilitation of disputes in a way that ensures the safety of families and children, with the paramount consideration being the best interests of the child.
Forms
Along with the changes, the Federal Circuit and Family Court of Australia has also introduced new forms. You should begin using these immediately, however there is a grace period for use of the old forms until close of filing on 7 June 2024. The following forms are not included in the grace period and will need to be used:
- Annexure to Proposed Consent Parenting Order (Current Case)
- Application – Contravention
- Application – Enforcement, and
- Application for Consent Orders if parenting orders are sought.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.