2024 Family Law Reforms in Australia

What is the Family Law Amendment Bill 2023?

On 19 October 2023, the Australian Parliament passed The Family Law Amendment Bill 2023, intended to bring about significant changes to some of the key principles of the Family Law Act. The changes aim to identify and improve the challenges that the jurisdiction is facing, including, court delays, complicated law and legal principles, and ineffective protections for parties and children at risk of family and domestic violence.

These reforms come after significant stakeholder consultation, from courts and practitioners to Aboriginal and Torres Strait Islander organisations. The Attorney General’s Department reported receiving 450 stakeholder responses to the draft Bill. The vast majority of this community consultation centred around the need for safety and simplicity.

When Do the Changes Come Into Effect?

These much-anticipated reforms will come into effect in early May 2024.

These reforms do not apply retroactively. They are only applicable to matters that are heard and decided by the court after 6 May 2024.

Major Changes to the Parenting Framework in the Family Law Act in 2024

The primary purpose of these reforms is to ensure and re-centre the best interests of child to family law practice. The key changes are:

1. Simplifying the ‘best interests of the child’
2. Removal of the presumption of equal shared parental responsibility;
3. Removal of the phrasing ‘significant and substantial time’;
4. Codification of case law concerning re-visiting final parenting orders; and
5. The requirements of Independent Children’s Lawyers.

Simplifying What the “Child’s Best Interest” Means

The fundamental principle of the Family Law Act is that all decisions and actions should be made in the subject child’s best interest. As it currently stands, what the ‘best interests’ of the child mean is a lengthy and somewhat complicated list of factors that the court should have regard to when determining what decision to make in proceedings concerning a child. The amendment to the Act seeks to simplify the list of factors the court shall have regard to, whilst continuing to allow judicial discretion where appropriate.

Current Version of Section 60CC

The current section of the Act which details the considerations of the court when deciding what is in the child’s best interest is comprised of both primary and additional considerations.

The primary considerations are:

1. The benefit of the child having a meaningful relationship with both parents; and
2. The need to protect the child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect and family violence.

The additional considerations are:

1. Views expressed by the child, and factors (such as the child’s maturity or ability to understand) that the court sees as relevant to the weight it should give the child’s views;
2. The nature of the relationship between the child and the child’s parent, or any other person;
3. The extent to which each parent has taken or failed to take the opportunity;
   • To participate in making major long-term decisions about the child;
   • To spend time with the child;
   • To communicate with the child;
4. The extent to which the parent has fulfilled, or failed to fulfill their obligations to maintain the child;
5. The effect of any changes in the child’s circumstances, including the effect of separation from either of the child’s parents, or any other child or relevant person;
6. Practical difficulty and expense of the child spending time with and communicating with a parent and the effect that has on the child’s right to maintain personal relations and direct contact with both parents regularly;
7. The capacity of the parent or any other person to provide for the needs of the child, including their emotional and intellectual needs;
8. The maturity, sex, lifestyle and background of the child and either of the child’s parents;
9. If the child is an Aboriginal or Torres Strait Islander child:
   • The child’s right to enjoy their culture, including the right to enjoy that culture with other people who share that culture; and
   • The impact of any proposed parenting order on that right;
10. The attitude of the child and the responsibilities of parenthood, demonstrated by each of the parents;
11. Any family violence involving the child or any member of the child’s family;
12. If a family violence order applies, or has applied, any relevant inferences that can be drawn from the order, including:
    • The nature of the order;
    • The circumstances in which the order was made;
    • Any evidence admitted in proceedings for the order;
    • Any findings made by the court, or in proceedings for the order; and
    • Any other relevant matter;
13. Whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child; and
14. Any other fact or circumstance the court thinks is relevant.

New Version of Section 60CC

Under these reforms, the court will no longer consider primary and additional considerations when assessing the child’s best interests. Rather, there will now be six general considerations and two further considerations which apply only to Aboriginal and Torres Strait Islander children.

These new considerations form a non-hierarchal core list of considerations aimed at promoting the child’s welfare and development, and allowing courts to apply discretion as to which considerations they choose to give more weight to.

The six general considerations are:

1. The need to promote the safety of the child and each person who has care of the child, regardless of whether this person has parental responsibility for the child (including safety from family violence, abuse, neglect or other harm);
2. Views expressed by the child;
3. The developmental, psychological, emotional and cultural needs of the child;
4. The capacity of each person with responsibility for the child, to provide for the child’s developmental, psychological, emotional and cultural needs;
5. 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 (for example, grandparents and siblings), where it is safe to do so;
6. Anything else that is relevant to the particular circumstances of the child.

The two further considerations, relevant to Aboriginal and Torres Strait Children are:

1. The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language;
2. The likely impact of any proposed parenting order on the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.

Equal Time & Equal Responsibility Provision

Under the current Act, there is a legislative presumption that it is in the child or children’s best interest for their parents to have equal shared parental responsibility. This responsibility gives parents of children decision-making power for both short and long-term decisions. When parents have equal shared parental responsibility, they are required to make a genuine effort to consult and agree on long-term decisions, such as the child’s education, religion, medical care and living arrangements. This presumption could be rebutted in circumstances of family violence or where there is a high level of conflict between the parents.

Further to this, the Act also requires the court to consider whether the child should spend ‘substantial and significant time’ with their non-resident parent. Substantial and significant time is defined by the unamended version of the act as time spent over both weekdays and weekends, and that the parent is allowed to be involved in the child’s daily routine and special occasions. What this looks like in practice depends significantly from case to case and what is appropriate for the child and their parents.

Changes to Equal Responsibility

The abovementioned presumption of equal shared parental responsibility has now been removed from the Act.

When faced with questions about the delegation of parental responsibility, the court will have the option to be more open to bespoke arrangements for parental responsibility. We may see more instances where one parent retains sole parental responsibility for one issue, but the parties are still required to share this parental responsibility on the remaining long-term decisions.

Changes to Equal Time

Reference to substantial and significant time will be removed in this update to the Act.

It is yet to be seen how this will affect non-resident parent’s time with their children. However, it does appear that the intention of this amendment is to focus more closely on the specific child’s best interests, rather than an abstract notion of a parent’s entitlement to spend time with the child.

Contrary to popular belief, there has never been an entitlement for a parent to spend equal time with their child, under Australian Law. This has not changed under these reforms.

Reasons to Review Final Parenting Orders

The underlying purpose of these reforms is to uphold and reinforce the court’s focus on the best interests of the child. The amendment to the Act has sought to minimise children’s exposure to further family law proceedings by codifying the judgment of Rice & Asplund.

In circumstances where parties have final parenting orders (whether by consent or by an Order of the Court), the court will only entertain a new application for parenting orders where there has been a significant change in circumstances from the time the final Orders were agreed upon, or made, or it is in the child’s best interest that the Orders be reconsidered. These will be the only ways to revisit final parenting Orders unless both parties agree to vary the Orders.

The amendments provide that the court shall have regard to the following factors when considering if they should re-hear the matter:

• The reasons and material on which the Final Order was made;
• Any new material that was not previously considered;
• Whether any new order will vary the operation of the existing Final Order substantially; and
• If revisiting the matter will benefit, or be of detriment to the child.

Changes for Independent Children’s Lawyers

Independent Children’s Lawyers (‘ICL’) are lawyers appointed during court proceedings to represent the best interests of children in parenting matters. An ICL is typically appointed in circumstances where there are allegations of abuse, neglect, family violence, or mental health issues relating to either the child or one of the parties, or when there is a high level of conflict between the parties.

Prior to these amendments, the ICL was not required to meet with the child or children before attending to represent their interests. While many ICLs would take it upon themselves to meet with the child or children, they were not compelled to by the Act or by the court.

These reforms now require ICLs to meet directly with children, to give them a greater voice and more say in the proceedings that concern them.

What Will These Changes Mean for Families Pursuing Litigation?

These amendments are a representative of a significant shift in the area of family law and the specific impact that it will have on families pursuing litigation is yet to be seen. Because it will undoubtedly shift the existing information out there, regarding principles such as the best interests of the child and parental responsibility, it is incredibly important that you seek legal advice on how the reform will impact your matter and your family.

Looking for a Lawyer Specialising in Family Law? Contact Catherine Henry Lawyers

Our family lawyers have extensive experience in parenting matters and are up to date with these amendments. We can advise you on how these amendments will affect the decision-making framework in your matter.

To confidentially discuss your needs, contact us on 1800 874 949 or fill in the form below and we will be in touch.