There are a number of amendments to the Family Law Act 1975 (Cth) (the Act) that will change the approach to parenting matters. This article explores four key changes to the Act that directly impact families and children.
What is the purpose behind the amendments?
The amendments to the Act aim to make the family law system safer and simpler to understand for separating families to navigate, and provide the Federal Circuit and Family Court of Australia (the Court) with more discretion to determining parenting arrangements.
Will current parenting orders be changed?
The changes to the Act do not apply retrospectively. This means the new law is only applicable to matters that are decided by the Court after 6 May 2024, not before.
Four key amendments to the Act
1. A new definition for “best interests of the child”
The most important consideration in determining arrangements for a child will remain the same as it was previously – that arrangements must be made in their “best interests” and not in the interests of the parents.
Prior to the new amendments, when asked to determine what was in a child’s best interests, the Court focused on two primary considerations and 14 additional considerations. Due to the new amendments, that list is now shorter with only six “general considerations” and two “further considerations” (applicable only if a child is Aboriginal or Torres Strait Islander). The list of considerations is non-hierarchal and the Court is not required to place more weight to any one factor over the others. The six general considerations when determining the best interests of the child are:
- What arrangements promote the safety of the child and the child’s carers (whether or not a person has parental responsibility for the child), including safety from being subjected to or exposed to family violence, abuse, neglect or other harm.
- Any views expressed by the child.
- The developmental, psychological, emotional and cultural needs of the child.
- The capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs.
- The benefit to the child of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
In considering the above matters, the Court must take into account:
- Any history of family violence, abuse or neglect involving the child or a 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.
As has always been the case, the Court must give greater weight to the need to protect a child from physical or psychological harm or from being subjected to, exposed to abuse, neglect or family violence over the benefit of a child having a meaningful relationship with both parents.
For an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture is given particular importance.
2. Removal of the presumption of “equal shared parental responsibility” and reference to “substantial and significant time”
Before the amendments to the Act, the law required the Court to presume that “equal shared parental responsibility” was in the best interests of a child. This often meant the parents had joint responsibility for making long term decisions for a child, such as those relating to schooling, health or religion. The presumption however did not apply if there were reasonable grounds to suspect harm, neglect, abuse or family violence.
The presumption was removed due to a misconception amongst the community that “equal shared” parental responsibility accorded to a child spending equal time with parents. The Court will now tailor decisions about parental responsibility, renamed as “joint decision making” about long term issues, to the circumstances of the particular child and their parents.
As has always been the case unless other ordered by the Court, if it is safe to do so, parents of a child are to consult with each other about major long term issues in relation to the child, and when doing so, have regard to the best interests of the child as the paramount consideration.
Now, with the removal of the presumption, it is more likely that parenting orders will allow a parent to have ‘sole parental responsibility’ for all or some long term decisions for a child. As a consequence of the removal of the presumption of “equal shared parental responsibility” the Court is no longer required to consider the pathway of equal time or substantial and significant time arrangements for a child where equal shared parental responsibility applied.
The amendments aim to reduce pressure to agree to parenting arrangements in circumstances of family violence, and give the Court more discretion to decide parental responsibility and care arrangements.
3. Grounds for making changes to final parenting orders
There has always been an ability to apply to the Court to amend final parenting orders pursuant to the case of Rice v Asplund if:
- There has been a “significant change in circumstances”; and
- It is in the child’s best interests for the final orders to be reconsidered; or
- There is agreement from all parties to the final order.
The intention of Parliament was to codify the rule in Rice v Asplund within the Act. A recent case heard by Judge O’Shannessy suggests the Act may not have actually “codified” Rice v Asplund. Under the relevant section a, “significant change in circumstances” is not a pre-requisite or threshold to re-open the proceedings, but rather a factor to be taken into consideration.
The changes to the Act also provide that the Court may regard the following factors when considering whether to entertain a new application after final parenting orders are made:
- The reasons for the final order and the material on which it was based;
- Whether there is any new material available that was not available to the Court that made the final order;
- The likelihood that if the final order was reconsidered, the Court will make a new parenting order that affects the operation of the final order in a significant way; and
- Any potential benefit or detriment to the child that might result from reconsidering the final order.
What is still the same is the principle that continued litigation over a child is generally not in their best interests.
4. The role of the Independent Children’s Lawyer
An Independent Children’s Lawyer (ICL) is sometimes appointed to represent a child’s best interests in a family law matter. The Court may appoint an ICL when it needs to hear an independent assessment about the child’s best interests.
Prior to 6 May 2024, an ICL was not required to meet with or speak with a child they represented. Under the new amendments an ICL is obligated to meet with and speak with the child, unless:
- The child is under five years of age (except where it is considered appropriate); or
- The child does not want to meet with the ICL or express their views; or
- There are ‘exceptional circumstances’ (for example, risk of psychological harm).
This requirement allows the ICL to get first-hand information and views from the child, which can be expressed to the Court on their behalf. Some commentators are concerned this requirement may lead to a greater need for the child to engage with experts and advocates in family law proceedings (which is already acknowledged not to be in a child’s best interests) and create further pressure or influence on a child to express a particular view to the ICL.
Ultimately, how the Courts will adopt these changes and, in turn, what practical effect these changes will have on families is yet to be seen. Until formal decisions are made by the Court, there will continue to be an element of uncertainty.
How we can help
Our Family and Relationship Law team understands that appropriate arrangements for the care of children following separation is a priority for parents. Often parents have different views about what is in their child or children’s best interests. The recent changes to the law may cause further uncertainty. Our empathetic approach and expertise can help guide you through the process and determine the best arrangements for your child.
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Please contact us for more detailed and tailored help.
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This article was originally published 31 July 2024. Updated 16 August 2024.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.