Changes to the Family Law Act 1975 – What does this mean for parenting matters?

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Changes to the Family Law Act 1975 from May 2024 regarding children

The Family Law Act 1975 (Cth) (“Family Law Act”) will be amended in various significant ways regarding disputes about children and parenting matters, and the changes pursuant to the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”) will come into effect on 6 May 2024.

The changes will substantially simplify the law regarding disputes about children.

In 2005, the Howard Government amended the Family Law Act and introduced a prescriptive list of matters which a Court must consider. This is subsequently referred to as the “pathway” to follow by many lawyers.

The new amendments reduced the list from 26 different matters to ten at most.

These changes include changes to how a court will make decisions on parenting matters, and new obligations for Independent Children Lawyers. The changes will apply to all new and existing matters, except for matters where a final hearing has commenced.

Goal of these Changes

The changes to the legislation mean that we are now moving away from confusing “presumptions” as to Orders the Court should make, to a true focus on a child’s best interests and the individual circumstances of each child and each family.

There is a substantial emphasis in these amendments to the “safety” of the child in question. Section 60B of the Act is now simplified, and provides that the goal of this part of the legislation is to:

1. Ensure that the best interest of children is met, including by ensuring their safety; and
2. Give effect to the Convention on the Rights of the Child (“CRC”).

New list of factors to consider in relation to the Child’s Best Interest

When making parenting orders, a court must regard the best interest of the child as the paramount consideration under the existing section 60CA of the Act.

The Amendments now set out a new list of factors under section 60CC (2), and the Court now has more discretion to consider the unique circumstances of each parenting case, with the child’s best interest as the paramount consideration for the Courts.

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 child (whether or not a person has parental responsibility for the child);
2. Any views expressed by the child;
3. The developmental, psychological, emotional, and cultural needs of the child;
4. 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;
5. The benefit of the child 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
6. Anything else that is relevant to the particular circumstances of the child.

In addition to the above, the new section 60CC(2A) also highlights the relevance of other matters such as family violence, abuse, and neglect in determining future parenting arrangements.

Aboriginal or Torres Strait Islander Children

In addition to the new list of factors, if the child is of Aboriginal or Torres Strait Island descent, then the Court will also have to consider the right of Aboriginal or Torres Strait islander children to enjoy their culture, as well as the support they will receive to connect that culture. There is also an expanded definition of ‘relative’ for a child of Aboriginal or Torres Strait Islander descent, to include a relative of a child as determined by their culture, rather than by blood (to include, for example, relatives through any kinship systems of their culture).

No More Presumption of Equal Shared Parental Responsibility

In 2005, the Howard Government introduced a new concept, namely a legal (rebuttable) presumption that parties should have equal shared parental responsibility about decisions regarding children.

There is now clear clarification that a determination about who should make long term decisions about a child should solely be based on their best interests, rather than any legal presumption. The new Section 61CA provides that:

“If it is safe to do so, … the parents… are encouraged…

1. to consult each other about major long‑term issues in relation to the child; and
2. in doing so, to have regard to the best interests of the child as the paramount consideration.”

New section 61DAA will provide that if an order has been made for joint decision making about major the parent must consult each other and make a genuine effort to make a joint decision.

No More Mandatory Consideration of “Equal” or “Substantial” Time Arrangements

Section 65DAA of the Act will be repealed. Under this section, if an Order is made that the parties should have equal shared parental responsibility for a child, the Court is required to consider whether it should make an Order that the child spend equal time or, if not, substantial and significant time with each parent, in accordance with the child’s best interest.

The legal (rebuttable) presumptions introduced to the Act in 2005 about joint decision making and equal or substantial time with each parent created confusion in the general population and an assumption that parents should have the children for fifty per cent of the time.

Section 65DAAA – Reconsideration of Final Parenting Orders – Codification of Rice v Asplund (1979) FLC 90-725

Final parenting orders cannot be varied or discharged unless there has been a significant change of circumstances to justify such a move. The Full Court decision of Rice v Asplund (1979) FLC 90-725 is the authority for that proposition.

The new amendments to the Family Law Act introduce new section 65DAAA under the heading: “Reconsideration of final parenting orders.”

Among other things, the new section 65DAAA states the Court must not reconsider existing final parenting orders unless it is satisfied:

“… that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.“

However, section 65DAAA also states:

(4) “The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.”

Therefore, it seems that a Court may vary existing final parenting orders without the need to apply the old Rice v Asplund test. It is difficult to reconcile at this stage what that means. We will find out in time when the new section is tested at the Courts.

How can we help?

If you or a loved one would like legal advice in relation to your parenting matter and want to know how the above changes will apply to your circumstances, please contact our Family Law Team to arrange an appointment with one of our family law solicitors.