The Family Law Amendment Act 2023 (Cth), assented to on 6 November 2023, brings significant changes to the law in relation to parenting and the way in which the Federal Circuit and Family Court of Australia (the Court) will determine parenting disputes.  Most of the changes to the law will apply from 6 May 2024.

The government says it is aimed at making ‘Australia’s family law system simpler, safer and more accessible for separating families and their children’[1].

So, what’s changing?

Removal of the presumption of equal shared parental responsibility

Since 2006 the Family Law Act 1975 (Cth) (the Act) has contained a presumption that parents should have equal shared parental responsibility for their children.  The presumption could be rebutted in circumstances of abuse or family violence or if the Court determined it was not in the child’s best interests.

Parental responsibility is defined in section 61B of the Act as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.  Where there is equal shared parental responsibility, parents should be consulting with each other and agreeing upon major long-term decisions about the welfare and development of a child ─ for example the area in which they will live, the school they attend, significant medical decisions, their name, and their religious or cultural upbringing.

Currently, where the Court makes an order for equal shared parental responsibility it must consider making orders for a child to spend equal time with each parent, if it is reasonably practicable and in their best interests.  This has caused some confusion in separating parents who often think they have a ‘right’ to equal time with their child (or children).

The new law will provide that a parenting order allocating responsibility for making decisions about major long-term issues may provide for joint decision-making, or sole decision-making ─ or may also provide for a person to have sole parental responsibility for particular issues, and joint decision-making for the remainder of major long-term issues.

Any allocation of responsibility for major long-term decisions will be based on what is in the child’s best interests, taking into account the factors set out in section 60CC of the Act.  Where there is joint decision-making responsibility parents will be required to consult with each other and make a genuine effort to come to a joint decision.

A simplified section 60CC to determine the child’s best interests

When making any Orders in relation to a child the Court must take into consideration the child’s best interests.  Currently there are primary considerations – being the benefit of a child having a meaningful relationship with both parents and the need to protect the child from harm – and 13 additional considerations.

The new section 60CC removes these primary and additional considerations and replaces them with 6 general considerations and two further considerations where a child is Aboriginal or Torres Strait Islander.

To determine what is in the child’s best interests the court will be required to consider:

  • The safety of the child and those who care for the child;
  • Any history of family violence, abuse or neglect involving the child or a person caring for the child;
  • Any family violence order which is or had been applied to the child or a member of the child’s family;
  • Any views expressed by the child;
  • The developmental, psychological, emotional and cultural needs of the child;
  • The capacity of each person who is proposed to have parental responsibility of the child to meet these 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.
  • Additional care is to be taken for the right of Aboriginal and Torres Strait Islander children to enjoy, connect with and maintain consistent connection with their culture.

New requirements of Independent Children’s Lawyers (ICL)

Independent Children’s Lawyers (ICL) are appointed in some parenting disputes to assist in presenting to the Court an independent view of the child’s wishes and best interests.  Presently ICLs aren’t required to meet with the children they represent and instead act based upon the evidence, including expert evidence, made available to them.

The new law will require an ICL to meet with the children they represent and to ensure that they are given an opportunity to express their views.  This won’t apply in all cases, for example where the child is under 5 years old.  The new law will also introduce the use of ICLs in cases of International Child Abduction under the Hague Convention.

Circumstances where final parenting orders may be varied

The leading case of Rice v Asplund, decided in 1979, gave us the principle that final parenting orders can’t be varied or reconsidered except where there has been a significant change in circumstances concerning the care of the children and where it would be in the best interests of the children involved to do so.  That principle will now be legislated through the Family Law Amendment Act 2023 (Cth).

Looking forward

Above we have described the most significant changes to the Act, noting that there are some others, including the introduction of harmful proceedings orders which aim to restrain repeated litigation.

The best interests of the child will remain paramount for the Court when determining a parenting dispute.  It remains to be seen whether the amendments make any significant difference to the outcomes of contested matters.

We do expect an increase in litigation and some differences in negotiated agreements, at least initially, as was seen with changes to the law in both 2006 and 2012.

Further legislative changes are in the works, with the submission process on the Family Law Amendment Bill (No.2) 2023 recently closing.

If you or someone you know need assistance with your parenting matter, you can contact our highly qualified Family Law Team at our Sutherland office by phone – (02) 9525 8688 – or by email – wmd@wmdlaw.com.au. We also invite you to download our free Divorce and Separation eGuide.

[1] https://ministers.ag.gov.au/media-centre/passage-landmark-family-law-reforms-19-10-2023