The passing of the most recent Family Law Amendment Act on 19 October 2023 brings important changes to the current regime, which will affect your rights, the court’s approach and our legal advice. These amendments will be effective from 6 May 2024.
There are four key changes which will discuss in this blog.
1. No more presumption of equal shared responsibility under section 61DA
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This presumption provides that parents are presumed to have equal responsibility concerning the long-term decision making of a child’s wellbeing, unless an exception applies. The presumption relates to decision making, rather than care arrangements. This provision requires the Court to presume that it is in the child’s best interests for their parents to have equal decision-making responsibilities.
However, the presumption was often conflated with section 65DA of the Family Law Act, which gives parents the right to equal time with their child. While these two sections operated differently, parents were rightly confused when it came to their parenting entitlements.
Effect
Now, the presumption has been removed, meaning that the Court has discretion to apply decision-making responsibilities with greaterflexibility. Until the Court orders otherwise, both parents are required to consult with each other regarding any long-term issues, with the child’s best interests and unique individual needs remaining paramount.
Removal of ‘equal time’ and ‘substantial and significant time’
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If the presumption of equal shared responsibility applies, the Court needs to consider whether spending equal time with each parent is in the child’s best interests. The Court also has to consider whether such arrangements are reasonably practicable. If the answer to both requirements is ‘yes’, then an order must be made so that the child can spend equal time with both parents.
If the answer to one of the requirements is ‘no’, then the Court will present orders that enable the child to spend substantial and significant time with the non-resident parent, such as on weekends or holidays. If the answer to both requirements is ‘no’, then the Court will make whatever order it deems necessary.
Effect
However, with the removal of the presumption, the requirement for the court to consider whether the child should spend equal or substantial and significant time is also abolished.This flexibility enables the Court to make orders that are tailored towards the needs and best interests of the child. The parents’ expectations regarding their rights to spend time with the child will now be overridden by the child’s best interests.
2. Redefining the best interest factors
Section 60CC of the Family Law Act guides the Court on how to make a decision that is in the best interests of the child. Initially, there were two key conditions with 14 additional considerations for the Court to examine. However, while useful, these considerations have proven to be repetitive and verbose.
Effect
Now, these considerations have been simplified to six key factors under section 60CC(3) of the Family Law Act. The Court will now consider:
Any arrangements that would promote the safety of the child and each person who has the care of the child;
Any views expressed by the child;
The child’s developmental, psychological, emotional and cultural needs;
The capacity of each person who is proposed to have parental responsibility to provide for those needs;
The benefit to the child of being able to have a relationship with both parents, and with other people where it is safe to do so; and
Anything else that is relevant to the circumstances of the child.
If the child is Indigenous, the court will also be required to consider:
Their right to enjoy their culture; and
The impact the proposed orders are likely to have on that right.
3. New obligations of the Independent Children’s Lawyer (ICL)
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In the past, section 68L of the Family Law Act provided that an ICL was not always required to meet with the subject child and this often meant that it was difficult for the child’s voice to be heard in the matter.
Effect
Now, section 68LA(5A) expands the duties of an ICL to include a requirement to meet with the child. Provided that an exception does not apply, this will ensure that the child’s best interests are fully integrated into the decisionas the child gets to directly speak with the ICL.
4. Reconsideration of final parenting orders
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Currently, the Court will only exercise its power to reconsider a final order if it is satisfied that there has been a substantial change in circumstances.
Effect
Once the amendments are implemented, the Court will adopt the approach taken in Rich v Asplund. This means that the Court must not reconsider a final parenting order, unless:
The Court has considered that there has been a significant change in circumstances since the order was made; and
The Court is satisfied that it is in the best interests of the child for the order to be reconsidered.
This means that even if the Court finds that there has been a significant change in circumstances, the Court will only vary the final order should it be in the child’s best interests. This may make it more difficult to bring new parenting proceedings. However, parents are still able to agree between themselves to vary a final parenting order.
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