As of 6 May 2024, changes to the Family Law Act 1975 from the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023, passed 19 October 2023, are in effect.
These changes will apply to all new and existing parenting proceedings in Court, whether an Application has already been filed in Court or not, typically except where a final hearing has already commenced. Certain changes will apply even if a final hearing is underway.
What are the changes?
Following the Australian Law Reform Commission’s Report, Family Law for the Future – An Inquiry into the Family Law System, the purpose of the amendments is to “make the family law system safer and simpler for separating families to navigate and ensure the best interests of the children are placed at its centre.”
In a nutshell, the most significant changes are:
- There is no longer a presumption that it is in the best interests of any children for parents to have equal shared parental responsibility;
- Instead, and where it is safe to do so, parents are “encouraged” to consult each other about major long-term issues in relation to any children. The Court will still make orders relating to the allocation of parental responsibility, referred to as ‘joint decision making on major-long term issues’;
- Following from the above, there is no longer a legislative requirement for the Court to consider whether an equal time arrangement, and in the alternative, a significant and substantial time arrangement, is in the best interests of any children;
- There are no longer primary and additional considerations when determining what is in the best interests of the children. Instead, there are now six core (as opposed to two primary and 13 additional) factors;
- The word ‘meaningful’ no longer features in respect of the benefit to the child of being able to have a relationship with that child’s parents; and,
- Where final parenting orders are in place, the Court must not reconsider the orders unless there has been a significant change in circumstances since the orders were made, and it is in the best interests of the child(ren) to do so. This is a codification of the longstanding Rice & Asplund.
There are also changes to:
- The definitions of ‘relative’ and ‘member of family’ to include ATSI concepts of family;
- The obligations of Independent Children’s Lawyers; and,
- Case management and the delegation of judicial powers to Registrars of the Court.
What do the changes mean?
Broadly speaking, the changes remove legislative requirements which were often considered as contributing to a ‘spreadsheet’ type approach to parenting – where there would be a fixation on equal shared parental responsibility and equal time arrangements, rather than what was best for the children.
Instead, the broadness of the new provisions means that there is likely to be an increased focus, with the Court relying more heavily, on external information such as Child Impact, Family and Single Expert Reports. This is accompanied by an intentional change in terminology used in the Family Law Act, with the new provisions now promoting the safety of any children and each person who has care of the children.
Although it remains to be seen, it appears likely that there will be a shift in the way that the Court conducts its assessment of risk when there are allegations of concern, with the ‘promotion of safety’ leading to the Court being unlikely to make parenting orders that it previously would have.
If you are concerned about how the changes to the Family Law Act may impact you or your child(ren), please contact Coleman Greig’s Family Law specialists.
