New laws recently commenced on 6 May 2024 effecting changes to the Family Law Act (FLA), primarily around matters concerning children. These laws are the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023.

Existing parenting orders are not automatically changed by the new family laws, and those existing orders must continue to be followed.

Below is a simplified description of some of the changes to the FLA which does not include some of the procedural changes to the law pursuant to the Family Law Amendment (Information Sharing) Act 2023.

What are the changes?

The FLA changes were made with the intention of legislating the United Nations Convention on the Rights of the Child 1989.

Section 60CC highlights the best interest of the child as the paramount consideration, however the new changes detail the new list of factors the court must consider when determining what is in the best interests of the child.

The list is non-hierarchical which allows the Court to have discretion to give weight to which factors that are unique to the parenting matter before them. Overall, all the best interest of the child is always at the forefront of any decision making made by the Court.

The factors are:

1. What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the children.

2. Any views expressed by the child.

3. The developmental, psychological, emotional, and cultural needs of the child.

4. The capacity of each person to provide for the child’s development, psychological, emotional, and cultural needs.

5. The benefit to the child of being able to have a relationship with the child’s parent, where it is safe to do so.

6. Anything else that is relevant to the particular circumstances of the child.

The new framework allows the Court to consider the relevance of past and present family violence orders (such as ADVOs) when determining future arrangements.

The Court must consider additional factors unique to Aboriginal or Torres Strait Islander children. These factors include the child’s right to embrace their culture, ensuring they have the necessary support, opportunities and encouragement to connect with and sustain their community, culture and language.

Equal shared parental responsibility is no longer the presumption. The interpretation of the term was commonly misunderstood as ‘equal time arrangements’ when it referred to joint decision making between the separated parents.

The removal of equal shared parental responsibility as the presumption means that parents are no longer presumed to be required to make joint decisions for major issues. Major issues include education, religious upbringing, health, the child’s name and or significant changes to living arrangements. The removal of the presumption means that the decisions about those major issues are now allocated to both or whichever parent the Court decides.

The new section 61D(3) grants the Court the authority to assign responsibility for decision-making, whether joint or sole, concerning certain major long-term issues.

For instance, the mother, who serves as the primary caregiver, may be designated sole decision-making authority over the child's education and medical requirements. However, both parents may share joint decision-making responsibilities regarding the child's cultural and religious upbringing.

There is no longer the requirement for Court to make orders that equal, substantial, or significant time is spent with each parent.

One party may put forward Orders that would mean a child will spend a small proportion of time or no time with the other parent if it is within the child’s best interest. This may be the case if there is a safety concern for the child.

Whether or not an order regarding decision making is made, all parents are required to make a genuine effort to consult with one another about decisions in relation to the child if it is safe to do so. Parents must work towards a solution that would take into account the child’s safety, views, needs, capacity of those caring for the child to meet those needs and any other unique features that would promote the best interest of the child.

Enforcement Of Child-Related Orders

There has been an intriguing shift in the area of contraventions/enforcement within Family Law. Previously, contraventions of orders necessitated an application to the court for a contravention hearing. Following a hearing, the court would need to determine whether a breach had occurred before issuing an order.

However, with the recent changes, the court now has the authority to order makeup time, vary orders, suspend an order, or mandate the respondent's attendance at a post-separation parenting program at any stage during the proceedings. These orders can be made without requiring a finding of contravention.

This alleviates the burden on parents who have experienced wrongdoing from having to initiate and await another court hearing. Furthermore, these changes are expected to discourage non-compliance and impose sanctions in cases lacking a reasonable excuse.

Independent Children’s Lawyer

Previously an Independent Children’s Lawyer (ICL) was only appointed in exceptional circumstances. The changes now bring our law closer aligned to Convention on the Rights of the Child 1989 which means the child’s right to express their views and be heard in any judicial proceedings is a key focus in the proceedings. To incorporate this an ICL will now be appointed for all matters unless the child is under 5, refuses to meet with the ICL or other exceptional circumstances are at play. The ICL must meet with the child and provide an opportunity for the child to express their view in the case.

An ICL will be appointed for most court processes including Consent Orders during proceedings, Court-based Dispute Resolution Conferences, Interim Hearing and Final Hearings.

These highlighted changes are among the recent implementations by the Federal Circuit and Family Court of Australia. If you currently have an active court case, you may fall under the old legislation if your matter is part heard in the final hearing prior to 6 May 2024. If you are still awaiting a final hearing date, you will be subject to the new legislation. If you're unsure, consult with your lawyer or contact the Federal Circuit and Family Court of Australia for clarification.

For more information about the changes to the FLA, see the Fact Sheet prepared by the Attorney General’s Department.

If you have any questions, or you need assistance with your family law matter, please contact us to make an appointment via our website, by phone on 4444 6808 or by email at contact@ardentlawyers.com.au