These changes are worth becoming familiar with and to make it easy for you, we have compiled them for you in a summary. We’ll unpack:
- The four core changes; and
- Who these core changes will and won’t affect.
What Triggered This Amendment?
In September of 2017, the Australian Law Reform Commission undertook an inquiry into the Family Law system which tabled a Report to Parliament in April of 2019. This amendment is one outcome of the Commission’s Report which made 60 recommendations for reform.
In the Commission’s final brochure summarising the recommendations, the recurring elements were about making the law simpler to understand and clearer to interpret.
Back in 2006 there were some significant changes made to the Family Law Act, some of which were often misinterpreted. One example was the use of the term ‘equal shared parental responsibility’ which while it was often confused for ‘equal time’ with children, that wasn’t the only issue. The core issue has been that ‘equal shared parental responsibility’ that is, decision making authority for children had to be done in consultation with the other parent, even if they were not otherwise actively involved in the care and responsibility for the child.
This amendment has been created to make the law easier to understand, for people across the family law system.This includes Judges so they can be clearer in their interpretation of the law.
Underpinning all of this change is the paramount consideration of the best interests of the children involved.
Family Law Changes 2024: The Core Changes
This amendment covers four main changes.
Change 1: How a Court Determines What Is in a Child’s Best Interests
Determining Factors
Where the list defining the factors for how a Court determines what is in a child’s best interests has been in excess of 15, the list coming into effect in May has been reduced in number but more descriptive for clarity to aid parents.
The amendment offers additional references to the ‘best interests of the child’ throughout and expands on the definition of “best interests” to include additional factors such as cultural background and family violence or abuse concerns.
While safety of the child has always been included in the “best interests of the child” section of the legislation, it is now more comprehensive. The Court must also take into consideration current or historical family violence connected to family members who care for the child.
Additions
Added to the legislation is the best interests of an Aboriginal or Torres Strait Islander child. This includes considerations about a child’s rights to connect with and maintain their family, community, language and culture. It also redefines ‘member of the family’ considering indigenous family structures, roles and kinship systems.
Further, in circumstances where an ICL (Independent Children’s Lawyer) is appointed to represent the best interests of a child, they must:
a) Meet with the child; and
b) Offer the child the opportunity to express their view (in relation to the specific matter)
While many ICL’s opted to meet with the child, now it is mandatory. This is discussed further below.
Change 2: Removal of the Presumption of ‘Equal Shared Parental Responsibility’ and ‘Significant and Substantial Time’
Where the Court has previously been required to apply the presumption that parents must have equal shared parental responsibility – that is, shared decision making power and a requirement to inform, consult and reach agreement about major decisions such as medical treatment, education and religion – that will be no more.
The Court has historically found it hard to rebut the presumption without the presence of a significant risk to the child, evidence of domestic violence between parents or an expert rigorously advocating for sole responsibility.
On the separate issue of time with children, if it was found that the presumption of equal shared parental responsibility was upheld then the Judge was required to consider an equal time arrangement for the child/ren. The amendment means there is no longer any reference to “equal time or significant & substantial time” arrangements with a parent. Instead, the time a child/ren have with their parents is to be decided having regard to a new test, accounting for the updated “best interests of the child” factors and their particular individual circumstances.
Change 3: Changing Final Parenting Orders
Whether existing Parenting Orders have been made by the Court or by Agreement, historically there has been a particularly high threshold to satisfy the Court in relation to whether Final Orders are to be reconsidered by a Court.
The amendment offers clarification about when Final Parenting Orders may be reconsidered. While it remains that a Judge must consider if there has been a significant change in circumstances (when compared to when the Final Orders were made) it also now requires the additional consideration of “best interests” factors for the child/ren and if the matter being reopened will achieve a better outcome overall.
It remains that Parenting Orders may also be reconsidered where both parents are in agreement that there should be a change to the Orders.
Change 4: Independent Children’s Lawyer (ICL) Assignment & Engagement
As mentioned above, the amendment will require an ICL to now meet with any child/ren (aged 5 or over) they are representing (unless they express that they do not wish to meet with the ICL) and offer the child/ren an opportunity to share their views in relation to the specifics of their arrangements.
The amendment will also allow more easily the appointment of an ICL to international family law cases.
Who Will Be Impacted By These Changes?
These changes will be particularly relevant for families with matters to be heard in the Court from May 6th, 2024. This amendment is not retrospective so if a final hearing has begun prior to May 6th, then the amendments will not be taken into consideration.
These changes will also impact professionals like ourselves and our colleagues as we come to learn how the new amendments will be applied by the Courts in a practical sense.
It will also potentially impact people who are making decisions about their next steps based on historical information, whether that be from case law or taking advice from family or friends who have been involved in the family law system in this way.
Given these significant changes and the subsequent amendments that are to come, this first amendment highlights the necessity for anyone with a parenting related matter to seek family law advice early. While some people fear that seeking legal advice early is unnecessary, or signals that you are escalating matters, know that seeking specialist advice will ensure that any decisions you make will be made from an up to date and informed position.
That, and selecting a specialist family lawyer who is an alignment in relation to how you wish to approach your parenting matter.
