Changes to the Family Law Act: What they mean to you

On 19 October 2023 the Parliament passed the Family Law Amendment Act. The changes to the Act are to apply from 6 May 2024 and will only apply to matters decided by the Court after that date. Until 6 May 2024, the current legislation applies.

The changes aim to make the system simpler to understand while ensuring that the best interests of children remain at the centre of the focus.

The amendments to the legislation relate primarily to parenting matters. What this means to you can be confusing and hard to understand. Cater & Blumer, and our experienced team of family lawyers can help you understand what these changes may mean for you and your family.

There are four key changes in the amendments. Let’s compare the new changes to the current legislation.

 

Parental Responsibility

Parental responsibility is a term used to describe who can make decisions for a child that impacts their welfare and wellbeing.

Under the current legislation, there is a presumption that the parental responsibility will be shared equally by parents unless there is evidence that this would not be in the best interest of the child.

The amendments remove this presumption and allows the Court to have the ability to make Orders that better suit each individual case. For example, this may mean that one parent may have sole parental responsibility for a school decision, but all other decisions are to be made jointly. The parental responsibility that may apply in each case will vary, so it is important that you obtain the correct advice about this.

The amendments also specify that parents who do not have Orders, should and are encouraged, to consult with each other about long term decisions.

A further inclusion allows for parents to make day to day decisions about the child without the input from the other parent. It was the case, that generally, this would be agreed, but it is now included in the legislation.

Time with Child

Currently, the Court must consider “substantial and significant” time for a child’s time with each parent, provided it is in the best interest of the child. The new amendments remove this, and bring the focus back to ensuring the time a child has with a parent is in that child’s best interest and does not have to be “substantial and significant”.

Best Interest Principal

The most important consideration for a court when deciding on time and living arrangements for a child is, what is in the child’s best interest. Currently, the ’best interest of the child’ has primary and additional factors for the Court to consider. There are 15 in total. The primary considerations are for the child to have a meaningful relationship with both parents, but this is only the case if there are no safety concerns for the child or risk of harm. 

The amendments have made a smaller list of factors for the court to consider. There will only be 6 general factors, with an additional 2 if the child is Aboriginal or Torres Strait Islander. There is also no longer a hierarchy in the considerations, and it is up to the Courts to decide what weight is given to each factor.

What remains the same however, is the court considers what is in the best interest of the child and not what is in the interest of the parents.

Changes to Final Parenting Orders

The new amendments set out specific criteria that must be met for an application to change final parenting Orders to be considered. Previously, this criteria was contained in case law and the legislation was very broad as to what the court needed to consider to allow an application to be made.

Independent Children’s Lawyer (ICL)

The new amendments set out the obligations of an ICL, including that they must now meet with the child in every case. There are still some exceptions to this, such as when the child is under 5, if the meeting would cause harm to the child or the child refuses to speak with the ICL.

The ICL’s role remains the same, being to act for the child in parenting proceedings.

Social Media

The amendments also now make specific mention and place restrictions of identifying people involved in family law proceedings on social media. Given the role social media places in society it is very important that you refrain from placing anything on social media until you have spoken with a lawyer.

 

There are many other changes that may need to be considered dependent on your specific circumstances. It is important to understand the changes when they come into effect and obtain legal advice if you need assistance. Our team can provide this expert advice and assistant. We offer a free half hour consult where we can talk you through the process and identify the legal issues, we may be able to assist you with.

 

 

Samantha Russell – Senior Solicitor Cater & Blumer