The much-anticipated Family Law Amendment Act 2023 came into operation on 6 May 2024, introducing major changes to the Family Law Act 1975 (Cth) concerning children and parenting matters. These amendments represent the most significant changes to Part VII of The Act in 18 years, reshaping how the Federal Circuit and Family Court of Australia addresses parenting issues.
Given these changes the advice we provide to clients navigating these issues will change. This includes matters relating to parental responsibility which include decision making in relation to major long term issues and parenting arrangements for children including who they live with and spend time arrangements.
Key Amendments
- Focus on Safety and Simplified Objects: Section 60B now has two primary Objects: ensuring the best interests of the child are met, including ensuring their safety and giving effect to the Convention on the Rights of the Child dated 20 November 1989.
- Removal of Equal Shared Parental Responsibility Presumption: The presumption that parents have “equal shared parental responsibility” has been removed providing the Court far greater flexibility and discretion in relation to making Orders about parental responsibility. This includes eliminating the previous requirement to consider “equal time” or “substantial and significant time” when an equal shared parental responsibility order was made.
- Codification of the rule in Rice and Asplund Rule: The amendments codify the rule from the case of Rice & Asplund regarding applications to the Court to vary Final Orders in parenting matters.
- Role of Independent Children’s Lawyer (ICL): New requirements for the ICL to meet with children over the age of 5 years and provisions which will see the appointment of an Independent Children’s Lawyer in Hague Convention proceedings.
- New Harmful Proceedings Provisions: The amendments introduce new provisions for the making of a new Harmful Proceedings Order, applications for summary dismissal and vexatious proceedings under Part XIB of the Act.
- Changes to Publication Rules: Removal of section 121 of the Act in relation to publication of proceedings and introduction of a new Part in the Act, Part XIVB.
- Family Report Writers: New powers to make regulations pin relation to Family Report writers.
- Streamlined “Best Interests Criteria”: The criteria for determining the best interest of the child under section 60CC have been condensed from 16 factors to 6 streamlined general considerations. The focus remains on child safety. The considerations that the Court must take into account are now as follows:
- What arrangements would promote the safety (including safety from being subjected or exposed to family violence, abuse, neglect or other harm) of the children and each person who has the care of the child, whether or not this person has parental responsibility for the child. In considering this factor the Court must consider 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. It is therefore imperative that advice is obtained if there are any proceedings for Family Violence Intervention Orders which involve the parties or children of the parties.
- Any views expressed by a child. It is important to note that the Court has discretion to decide what weight, if any, it gives to the child’s wishes and how those wishes are ascertained. These views can be ascertained from the preparation of a Family Report, meeting with an Independent Children’s Lawyer if one has been appointed or by other means.
- The developmental, psychological, emotional and culture needs of the child.
- The capacity for each person who has or is proposed to have parental responsibility for the child to provide for the child’s development, psychological, emotional and cultural needs.
- The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child when it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
Impact and Implementation
There is a significant focus upon safety.
In appropriate cases we expect to see changes to the way the Court makes orders in relation to decision making regarding major long term decisions and parental responsibility and where warranted, more tailored and bespoke orders in this regard.
As these changes take effect, we will closely monitor how the Court applies the new provisions to understand their practical impact on parenting arrangements. As time passes there will be greater clarity around the implications and effect of these significant amendments.
For assistance with navigating these changes or any parenting matters, please contact our Head of Family Law, Rebecca Goldman, rgoldman@kcllaw.com.au.