The Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023 were passed by the Australian Parliament on 19 October 2023.
These family law reforms see significant changes to the parenting framework of the Family Law Act, including:
The majority of the amendments to the Family Law Act 1975 (“the Act”) came into effect on 6 May 2024. The changes will apply to new and existing matters. This means that if you have a family law matter already before the Court and the final hearing had not commenced prior to 6 May 2024, the new laws will apply.
Section 60CA of the Act provides that when making a parenting order, a court must have regard to the best interests of the child as the paramount consideration.
Prior to the amendments, the Court used to have sixteen factors to consider when assessing a child’s best interest. This section has now been repealed and replaced with a far shorter list of considerations. Under the new section, the Court will consider six core factors when determining the best interests of your child/ren.
The new factors the Court will consider to determine the best interests of the child are:
The amendments have also introduced a standalone best interest factor if the child is Aboriginal or Torres Strait Islander. If this is the case, the Act provides that the court must consider the following matters:
The Act still maintains its current position that each parent has parental responsibility for a child who is under the age of 18 (subject to court orders).
However, the amendments have repealed the presumption of ‘equal shared parental responsibility’, which meant parents had an equal say in determining major long-term decisions (such as education, religious and cultural upbringing, health, name and significant changes to living arrangements).
Notably, the Act now adopts the terminology of ‘joint decision making on major long-term issues’.
The Act provides that unless there are Court orders stating otherwise, and if it is safe to do so, parents are encouraged to consult each other about major long-term issues in relation to the child, having regard to the best interests of the child as the paramount consideration.
The new provisions in the Act make it clear that the Court can make orders that decisions are made jointly or that one parent has sole decision making in relation to all or specified major long-term issues.
If a parenting order provides for joint decision-making in relation to all or specified major long-term issues, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
The Act expressly notes that it does not require any other person to establish or verify whether the decision was reached jointly before being acted upon. This means, for example, that third parties, such as schools or healthcare providers, are not obliged to verify the decisions and can assume they were determined jointly.
Additionally, parties no longer have an obligation to consult each other on issues that are not major long-term issues, such as decisions about the child's dietary choices or clothing.
Prior to the amendments, the Court had to consider making an order that a child spend equal time, or substantial and significant time with each parent if an order for equal shared parental responsibility was made.
The Court is now simply required to consider the best interests of the child considerations when determining time spent with each parent. The Court can consider if equal time or significant and substantial time is in the child’s best interest (factors outlined above).
There has been a new section inserted into the Act regarding the reconsideration of final parenting orders by the Court.
If there are final parenting orders in place, the Act makes it clear that the Court must not reconsider the final parenting order unless:
The above approach has been adopted by the Court since the case of Rice v Asplund (1979) and has now been incorporated into the legislation.
We understand that these changes may cause some confusion and/or uncertainty for anyone looing to make parenting arrangements after separation or involved in a parenting dispute.
If you’re working through parenting arrangements 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.
For more information or to arrange a consultation with a lawyer, you can call or email us.
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.
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