This coming May will see significant changes to the Family Law Act and its implementation in family law courts across Australia. It’s the first time we’ve seen changes of this size to the Act in decades. So what are they and what do they mean to you?
What are the changes?
There are four key changes that will be implemented as of May 6, 2024, as well as changes to the language used within the Family Law Act. The aim of these changes is to ensure the best interests of children are placed at its core by making the family law system safer and simpler for separating couples to navigate.
- Removal of ‘equal shared parental responsibility’
For decades, the Family Law Court has worked on the presumption that it is in the best interests of the child to ensure both parents have equal shared responsibility of the child and decision making. With the changes, this presumption will be removed, allowing the Court greater freedom to consider tailored arrangements for parental responsibility based on individual circumstances. This may look like one parent having sole parental responsibility for specific issues or decisions and shared parental responsibility for others, depending on the best interests of the child. This also allows the Court to recognise that sharing time equally between both parents may not be best for the child.It will remain, however, that both parents are expected to work together to make decisions about long-term and significant issues, including education, healthcare and religion. In circumstances that involve a risk to the child, such as violence and substance abuse issues, one parent can apply for sole parental responsibility.
- Changes to what is consider in ‘the best interests of the child’
Under the changes to the Family Law Act, the Court will consider six general considerations of the child’s best interest, as well as two further considerations if the child identifies as Aboriginal or Torres Strait Islander.Each factor is treated equally and without hierarchy, so the Court cannot favor one over the others. However, the Court can still decide how much importance to give each factor based on the specific situation.
The six considerations are:
1. The child and each person who care for the child (including those who do not have parental responsibility, such as grandparents) must be safe from family violence, abuse, neglect or other harm.
2. The child’s views and wishes.
3. The developmental, psychological, emotional and cultural needs of the child.
4. The capacity of each parent to provide for the child’s needs as stated above.
5. The benefit of the child to have a relationship with each parent and other significant people in their life, where it is safe to do so.
6. Other factors relevant and important to the individual circumstances of the child.The two further considerations are:
1. The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by maintaining their connection with their community, culture, Country, language and family members.
2. The anticipated impact of any proposed parenting order on the child’s right to enjoy their Aboriginal and Torres Strait Islander culture. - Making amendments to final parenting orders
Changes to final parenting orders can only be made under the changes if one of the following occurs.– There has been a significant change in circumstances
– It is in the child’s best interest to reconsider the current arrangement
– All parties agree to make changes to the parenting order despite none of the above occurring.In any of the above circumstances, however, the Court will still consider if the proposed changes are genuinely in the best interests of the child.
- The requirement of Independent Children’s Lawyers
Under the changes, it will now be a requirement that an Independent Children’s Lawyer (ICL) be appointed by the Court to speak with the child and provide an opportunity for them to express their wants and views. The child will not be required to speak with an ICL if one of the following applies:– The child is under the age of five (unless deemed appropriate).
– The child does not want to meet with the ICL or express their views.
– There are exceptional circumstances that mean meeting with an ICL may put the child at risk of harm (for example, a meeting may expose the child to psychological harm that cannot be safely managed).
I already have a parenting order in place. Will this be changed under the new laws?
No, any existing orders will not be affected by the changes to the Family Law Act. However, if you wish to make changes to the final order, you will need to meet one of the criteria outlined in point 3. Furthermore, any changes will be assessed under the new considerations outlined in point 1.
