There are a number of amendments that will change the Family Law Act (the Act) and change the way the Federal Circuit and Family Court of Australia approach parenting matters. The four primary changes to the Act and how they may impact your family law parenting matter are:
- Removing the presumption of ‘equal shared parental responsibility’;
- A new definition for ‘best interests of the child’;
- Grounds for making changes to final parenting orders; and
- Role of the Independent Children’s Lawyer.
Will the new family law amendments affect my current parenting orders?
No, they will not change any formal arrangements or orders finalised by May 2024 or any time before then. However, if your matter ends up in the family law system after this time, or you decide to change current orders, the newly amended laws will be used to determine the outcome.
Will it be harder to change parenting orders after the Family Law Amendment Bill starts in May 2024?
Possibly, but it will depend on the nature of your matter. If you have genuine reasons to make changes, you will still be able to change your orders.
The court will want to know a few things before changing final parenting orders, including:
- If there has been a significant change in your parenting circumstances. This could be a child or parent having significant ill-health, one parent moving for work, or perhaps a child wanting to be with one parent more than the other
- If changing will have a positive impact (which the courts define as ‘the best interests of a child’) on the child or children involved
If there have not been significant changes, or it can’t be shown that it is in the child’s best interests, but everyone agrees to the new order being made, it can still be made.
This section of the law is 65DAAA Family Law Act 1975 (Cth). These changes have been made to reduce the amount of lengthy court battles for families and prevent separated couples from repeatedly going back to court regarding parenting arrangements.
Children’s best interests take centre stage.
The best interests of a child have always been a core focus of family law, but new amendments place them at the centre stage of family law proceedings. This can get tricky when two parents who disagree believe they are both acting well in the best interests of their children. Often, the best thing for a child may not ultimately be what either parent wants, but instead, they should be concerned with what a child needs.
So, how do the courts assess a child’s ‘best interests’?
- Is the child happy, healthy and safe from harm or neglect?
- What does the child feel? What have they expressed that they want? Are they mature enough for their views to be taken into account?
- Are their developmental, psychological, emotional and cultural needs being met?
- Having healthy relationships with their mother, father, step-parents, uncles, aunties and grandparents when it is safe to do so
- Meeting unique factors of the child’s needs – which may be having support for a medical condition or being encouraged to pursue what matters to them
- To enjoy their culture, especially if they have Aboriginal or Torres Strait Islander heritage.
Stricter rules for the protection of family violence survivors.
Over the years, many concerns have been raised about family law rulings that have not fully taken into account the impact of family violence. There have been instances in which shared care has been granted after a history of violence in the home, making it impossible for children and abused parent to live in safety.
With over 64% of individuals in family law proceedings having expressed that they have experienced family violence, it’s clear that changes need to be made. The new laws will require the courts to fully consider any previous or current history of family violence and how this could affect parties before making final orders.
Further family violence protections have been welcomed by many legal practitioners in the hope of reducing the instances of ongoing family violence affecting victims and children.
Sharing personal details of your family court matter – a big no
In general, sharing details of legal matters decided on by the court isn’t a good idea, due to privacy laws, the impact on children and the ability to affect the reputation of someone else, or damage their personal or professional credibility. There have always been specific protections in the Family Law Act.
New family law amendments make this even clearer but also take,into account that parties need support from family and friends as well as the growth of social media. They aim to protect parties and to clarify restrictions about what is and isn’t okay to share with others. Identifying the other party publicly (by name, photo, video or describing them), or providing details about where they live or work, or other clear links to their identity, is seen as a clear breach of the other party’s privacy.
Generally, talking to your support people about the situation isn’t a breach, but it’s worth being mindful that texts and messages can be screenshotted and used as evidence, so it’s best to keep your conversations free of too much negativity. Social media should be used very cautiously as publication of identifying details may be a criminal offence.
The importance of culture and connection is recognised
A long era of the removal of children from family homes, in particular indigenous and Torres Strait Islander children, in Australia’s family law system, has highlighted the importance of children staying connected with their culture.
In family law matters, this will also apply to any child whose parents are seeking family law orders, to ensure that children have the ability to remain connected to their culture, and have their traditional concepts of family respected when parenting orders are made.
Make-up time – more power for registrars to make an order for time lost by one parent due to the actions of the other parent
In many matters in the past where a parent has lost time with a child due to the unjustified actions of the other parent, even if in breach of a final order, the process to regain lost time with a child has not always been straightforward.
From 6 May, 2024, family court registrars will be empowered with the ability to issue orders for lost time to be made up if a child has missed time with a parent due to the actions of the other parent. How this will play out is uncertain, but it has the potential to make a valuable difference for parents who have been wrongfully denied time with their children because it may be quicker, easier and cheaper to obtain orders for “make up time”.
Equal time & equal shared parental responsibility are no longer the default
In the past, it’s been accepted that in most family court matters, parents will have equal and shared decision-making responsibility unless otherwise indicated. This means that parents were required to talk to each other and reach agreement before making choices that would significantly impact their child, and reach agreement on the best course of action.
Under Section 61DAA, the Federal Circiut and Family Court has required that parents communicate with each other, and make a genuine effort to reach a mutual decision that is beneficial to their child.
This will no longer be a given, or a presumed default for the court. It’s likely that the courts will look at matters on a case-by-case basis as to who is to be responsible for which decisions.
‘Significant and substantial time’ will no longer be a reference point in the new amendments, although having a meaningful relationship with both parents and other significant people is an indicator in the best interests of the child. The court can and likely will still issue orders for equal parenting time in many instances, especially when parents are able to jointly make decisions and there is no family violence.
Independent Children’s Lawyers – (ICLs) will become more important for both Australian family law matters and Hague Convention matters
Independent Children’s Lawyers (ICLs) (lawyers who work directly with children to express their needs) who are appointed in family law matters will now need to meet the child they are working with and take into account the views they wish to express, which was not a requirement previously. The exceptions to this? Primarily, if a child is under the age of 5 or does not wish to meet with them.
Using an Independent Children’s Lawyer will also become more frequent in cross-jurisdictional cases involving the Hague Convention. The Hague Convention on the Civil Aspects of International Child Abduction is an agreement between Australia’s government and a large number of other countries that is relied upon when one parent takes a child from an agreement country. This agreement allows law enforcement from member countries to work together to return children abducted and taken to one of these countries.
In the past, ICLs were not commonly used in these matters, but in the future, they will likely be used more often to represent the needs of children in Hague Convention matters.
Family report writers to be regulated, ensuring reports are prepared in a safe and appropriate manner
Family law proceedings can be immensely stressful for adults, and their impact on children can be even more distressing. There are times that the court will seek the views of the children involved, which an independent third party usually does. This may be a psychologist or someone qualified to understand family dynamics, such as a social worker.
Child Experts are generally employed to do this work, demonstrating all parties’ views, co-parenting family dynamics and other important information. The collective aim is to regulate family report writers to ensure that reports are prepared safely and appropriately, considering the child’s best interests and wellbeing.
Better sharing of information to protect children at risk of harm
The new legislation encourages information sharing between relevant agencies and professionals involved in family law matters, facilitating a more connected approach to child protection and family support.
This will make matters where child safety is a factor much easier to navigate and increase current child protection systems through better availability of information and a stronger ability to communicate about issues that may impact a child’s wellbeing. This will help protect the child’s best interests by ensuring that information is not missed when outcomes depend on a ‘whole picture’ scenario.
The amendments aim to address the shortcomings and challenges faced by the previous system, particularly in cases involving family violence, child abuse, and parental conflict.
Get help from a family lawyer
It’s not unusual for parents to have different views about what is in their child’s best interests, and the ambiguity that will accompany these legislative changes is likely to cause further uncertainty.
If you’re working through parenting arrangements after separation and you need assistance to ensure the best interests of the children are being protected, our family lawyers have significant expertise and experience in all aspects of parenting disputes