There are a number of amendments that will alter the Family Law Act and change the way the Federal Circuit and Family Court of Australia approach parenting matters. The Family Law Amendment Act 2023 sets out new laws regarding:

• What a court must consider when determining what is in the child’s best interests, and

• How separated parents are to make decisions about long-term issues for their children.

In this blog, we help you understand how the new law operates, and look primarily at how the four primary changes to the Family Law Act may impact your family law parenting matter:

1. Removing the presumption of ‘equal shared parental responsibility;’

2. A new definition for what the courts will now consider what is in the ‘best interests of the child;’

3. Grounds for making changes to final parenting orders; and

4. The role of the Independent Children’s Lawyer in family law matters.

Will my current parenting orders be changed?

The new laws are only applicable to matters that are decided by the Court after 6 May 2024, not before. It will not change pre-existing parenting orders that have been finalised.

HOWEVER, this may affect you if you currently have a parenting matter before the court that won’t be finalised before 6 May 2024 or are currently trying to determine the right parenting arrangement for your child.

Four key changes – from 6 May 2024!

The amendments to the Family Law Act aim to make the family law system safer and simpler for separating families to navigate and ensure the best interests of the children. 

1. Changes to the concept of ‘equal shared parental responsibility’ and the previous references to ‘substantial and significant time’.

As of 6 May 2024, there will no longer be a legislative ‘presumption’ that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility in relation to the long-term decision-making for the children.

Parents will still be encouraged to consult with each other about major long-term decisions in relation to their children to ensure it is in the children’s best interests but the Court may now be more open to more tailored arrangements for parental responsibility. For example, a parent may potentially have ‘sole parental responsibility’ for a specific issue, but shared parental responsibility for the remaining issues. 

There will also no longer be any reference to ‘substantial and significant time’ under the legislation. It is still unclear however how the Family Court will apply these new laws to specific circumstances and the practical effect of them. 

2.A new definition for what is in ‘the best interests of the child’.

If you are asking the court to determine parenting orders, it is important that you provide the court with reasons why the orders you want are in the best interests of the child, not the parent.

However, from 6 May 2024, the Family Law Act will no longer require the Court to consider ‘primary’ and ‘additional’ considerations when determining what is in a child’s best interest. Instead, there will now be six ‘general considerations’ and two ‘further considerations’ (applicable only if a child is Aboriginal or Torres Strait Islander). 

The six general considerations when determining the best interests of the child are:

1. The need to promote the safety of the child and each person who has care of the child, whether or not this person has parental responsibility for the child (including safety from family violence, abuse, neglect or other harm,

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 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,

6. Anything else that is relevant to the particular circumstances of the child.

When determining what is best for the child/children, the Court will continue to give the highest priority to protecting a child from any physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence over the benefit to a child of having a meaningful relationship with both parents. 

Further considerations specific to Aboriginal or Torres Strait Islander children

The further considerations under the Family Law Act specific to Aboriginal or Torres Strait Islander children are:

• The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language.

• The likely impact of any proposed parenting order on the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.

  3. Restricted ability to make changes to final parenting orders

Continued litigation over a child is not usually in anyone’s best interests, let alone a child’s best interest.

From 6 May 2024, the Court may only consider a new application after the final parenting orders have been made if:

• there has been a “significant change in circumstances” AND 

• it is in the child’s best interests for the Final Order to be reconsidered, OR

• there is agreement from all parties to the final order, even if there has not been a significant change of circumstances or it is not in the child’s best interests. 

  4. Independent Children’s Lawyer’s role (ICL)

An ICL is an independent, impartial party to family law proceedings who is appointed by the court when the court wants to get an independent assessment about the child’s best interests. As children are not allowed to attend court, sometimes an ICL will be appointed to represent the child’s best interest in a family law matter. 

If an ICL is appointed in a matter from 6 May 2024, the ICL will have now have a legal obligation under the legislation to meet with and speak with the children that the proceedings relate to, unless:

• the child is under the age of 5 years (unless deemed appropriate);

• the child does not want to meet with the ICL or express their views; or

• there are ‘exceptional circumstances’ (for example, such a meeting would expose the child to psychological harm that cannot be safely managed).