Overview of the Changes to the Family Law Act 1975 as of 6th May 2024
Renewed Focus on Child and Caregiver Safety
Changes to the Family Law Act will come into effect on 6 May 2024, which will impact the way the Court considers parenting matters. There will be a renewed focus on the safety of children and their care givers (including whether or not a parent to the child). Previously the Court was required to consider 16 factors when making Orders for children’s arrangements to spend time with their parents, the main focus of which required the Court to weigh up the benefit to the child of having a meaningful relationship with both of the child’s parents, with the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Simplified Factors for Consideration of Orders for Children’s Arrangements
The changes simplify the factors to be considered with only 6 factors now to be considered, the main focus of which is to take into account what arrangements would best promote the safety of the child and child’s care givers. This requires the Court to give greater weight to allegations of family violence or other risk posed to children and their carer, which is a great relief to many families within the family system.
These new six factors are:
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 child (whether or not a person has parental responsibility for the child);
Any views expressed by the child;
The developmental, psychological, emotional and cultural needs of the child;
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, 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, where it is safe to do so; and
Anything else that is relevant to the particular circumstances of the child.
In considering any risk of harm or to a child or parents’ safety, the court must also 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 to the child or a member of the child’s family.
Consideration of Cultural Needs
In considering the child’s cultural needs, specific focus in the legislation has been given to the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, including by having support, opportunity and encouragement to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and to explore the full extent of that culture consistent with the child’s age and developmental level and the child’s views; and to develop a positive appreciation of that culture.
Although the legislation specifically refers to Aboriginal and Torres Strait Islander cultures, similar consideration applies to non-indigenous cultures and religion, which is particularly important considering Australia’s multi-cultural communities.
Changes in Parental Responsibility Presumptions (the new section 60CC)
The court is also no longer required to presume as a starting point that it is in children’s best interests for parents to have equal shared parental responsibility about major long-term decisions for children. Previously this presumption was only rebutted where the court was satisfied that there were circumstances which meant that parents should not have to consult with each other and reach agreement about major long-term decisions, such as issues of safety. The removal of the presumption means that the court can now consider as a starting point the possibility of only one parent exercising decision making authority for major long-term issues affecting their children (such as education, religious and culture upbringing, health, name, and significant changes to living arrangements).
In making a decision on this issue, the court is required to consider the best interest of the child under the new section 60CC in the individual circumstances of each case. Regardless, it will remain the court’s expectation that parents continue to consult with each other about major long term issues, provided that it is safe for the parents to do so.
Implications for Equal Shared Parental Responsibility and Time Arrangements
Where the court decides that it is in a child’s best interests, and does not pose a risk to the safety of the child or parents, the court will still be able to make orders for equal shared parental responsibility, and in those circumstances parents must consult with each other about major long term issues for the child. However it will remain to be seen whether the court will continue to include orders for parental responsibility where parents have demonstrated the ability to consult and make joint decisions in the past.
The court also no longer has to consider making an Order that children spend equal time, or substantial and significant time with each parent. Although this language has been removed from the Family Law Act, it still remains open to the court to consider whether equal time arrangements, or arrangements that give substantial or significant time with each parent, is in a child’s best interests. Given the significant amount of case law on this issue, and social science research that supports children spending significant and substantial time with both parents, it is unlikely that this approach will change, unless the individual case requires this in order to protect the safety of the child or the care giver involved.
Applicability of the Changes to the Family Law Act as of 6th May 2024
The changes to the Family Law Act will be applicable to all matters that are before the court after 6 May 2024 (except for matters that are already part way through a Final Hearing). This means that where your case may have started under the previous legislation, the factors to be considered by the court will change after 6 May 2024.
This may also result in parties attempting to vary their orders to take into account the changes. If you matter is already part way through the court system, there is no need to file a fresh Application, but all further material filed with the court must be drafted so that it takes into account the new factors.
Potential Variations in Existing Final Orders
Where parents have existing Final Orders, they will not automatically be able to file an Application seeking to vary their Orders to take into account the changes to the Family Law Act, and any parents wishing to do so will need to comply with section 65DAAA, which will require that before the court can reconsider the existing final parenting order, the court must first take into account:
Whether there has been a significant change of circumstances since the final parenting order was made; and
Whether the court is satisfied that it is in the best interests of the children for the final parenting order to be reconsidered.
This will include a consideration of the new best interests factors in the court determining whether the litigation should be re-opened, once the court is satisfied that there has been a significant change of circumstances since the Final Parenting Order was made.
Unfortunately, the change to the legislation will itself not constitute a significant change in circumstances.
If you have existing Final Orders that you are dissatisfied with, and you believe that the change in the Family Law Act would result in a different outcome, please contact our office to discuss further with one of our specialist family lawyers.
Author: Sarah Pullan, Special Counsel, Independent Children’s Lawyer