There are changes coming to the Family Law Act 1975 (Cth) from 6 May 2024, which will impact how the Federal Circuit and Family Court of Australia determines parenting matters.
These changes may affect you if you have a current matter before the Court that will not be finished before May or if you are trying to reach agreement about ongoing care arrangements for your children, post-separation.
There is a helpful factsheet for parents at this link – www.ag.gov.au/families-and-marriage.
While there are several changes to the parenting clauses of the Act, we thought it would be beneficial to highlight the 4 major changes:
1. The existing presumption that parents have ‘equal shared parental responsibility’ for children is being removed. Previously, unless there was a safety risk, each of a child’s parents shared responsibility for the major long-term decisions; such as their names, their religion, education and where they live. This is not the same as ‘equal time’ with both parents, although this was often confused. There will no longer be a presumption that it is best for a child to have both parents involved in the decision making. It may result in more flexible arrangements for how responsibility is shared between parents. For example, one parent can have sole parental responsibility for medical decisions.
2. The definition of ‘best interests of the child’ is reimagined. The current system has had to consider the best interests of the children as the paramount consideration. This is still the case with theses changes, but there will be factors included which aim to ensure that best interests is at the forefront of the decision-making.
The factors in summary are as follows:
a. What arrangements would promote the safety of the child and each person who has the care of the child
b. Any views expressed by the child
c. The developmental, psychological, emotional and cultural needs of the child
d. The capacity of each person who seeks care of the child to provide for the child’s above needs
e. The benefit of the child being able to have a relationship with their parent or other significant people
f. Anything else that is relevant to the circumstances of the child
3. The Act will introduce an avenue for reconsideration of final parenting orders. Of course, when final orders are made the assumption is that they will remain in place until the children reach 18 years of age. It is not always the case that final orders remain appropriate for circumstances and parties then need to apply to have them changed.
There is now going to be specific sections within the Act which advises the threshold required before the Court considers changing a final order. These are: that the Court considers there has been a significant change of circumstances since the Order was made and that the Court is satisfied that a change would be in the children’s best interest. It may also be changed if both parties agree to change the orders. It is important to note that the changes do not apply retrospectively, so if you have parenting orders they are not open for re-litigation simply by virtue of these changes.
4. The role that the Independent Children’s Lawyer plays in proceedings is changing. Oftentimes the Court will make Orders for an independent children’s lawyer (ICL) to be appointed to assist the Court in determining the best interests of the children. There will now be a requirement for the ICL’s to meet with the children and the children given an opportunity to express their view (if they are over 5 years of age) and if they want to. This is an important change because children sometimes feel powerless in family law matters despite the discussions revolving around them directly. This will allow them to participate more openly in the process and should result in achieving better outcomes for parenting matters.
The overarching purpose of our practice as family lawyers and the court system, is that we want disputes to be resolved in way which ensures all parties and the children are safe and that we can assist quickly and efficiently. It is hoped that with these changes the family law system in Australia will be much improved.
Lindbloms Lawyers can help answer any of your family law questions. Give us a call today for a no obligation consultation.