The passage of the Family Law Amendment Bill 2023 (Cth) on 19 October 2023 will result in significant changes to the Family Law Act 1975 (Cth), particularly concerning parenting matters. Effective from 6 May 2024, unless a Final Hearing is underway, the majority of these amendments will come into force.

Key Alterations to the Family Law Act include:

1. Elimination of the Presumption of Equal Shared Parental Responsibility

Presently, the Court operates under a presumption favouring equal shared parental responsibility unless circumstances such as family violence intervene. This requires joint decision-making on significant long-term issues. The misconception of entitlement to equal time with the child often arises from these provisions, and was a main driver for legislative change.

The amendments discard the presumption of equal shared parental responsibility and the mandate for the Court to consider equal time or substantial time for each parent. Consequently, the Court will determine parental responsibility allocation based on the child's best interests, as outlined below.

Parenting orders addressing long-term decisions may now specify joint or sole decision-making. Joint decision-making requires parental consultation, excluding non-major issues during a child's time with a parent.

2. New Criteria for Determining the Child's Best Interests

The existing framework mandates the Court to weigh primary considerations, such as a meaningful relationship with both parents, and the need to protect the child from harm. Fourteen additional factors, including the child's views, further guide the decision. See our previous blog for more https://www.focusonfamily.com.au/blog/best-interests-of-the-child-what-does-it-mean

The amendments streamline these considerations into six general factors:

Safeguarding the child's safety, including protection from family violence, abuse, neglect, or harm.

1. The child's expressed views.

2. Developmental, psychological, emotional, and cultural needs.

3. Each parent's capacity to meet those needs.

4. The child's benefit from a relationship with both parents.

5. Any other relevant circumstances.

For Indigenous children, their right to cultural connection is a paramount consideration.

3. Reassessment of Final Parenting Orders

The amendments codify the Rice v Asplund rule, stipulating that revisiting final parenting orders requires a proven significant change in circumstances and a demonstrated benefit to the child. This elevates the threshold for varying final orders, even with a substantial change.

Factors considered in assessing the best interests of the child for reconsideration include the initial order's rationale, new evidence, potential differences in a revised order, and the child's well-being.

However, mutual consent between parents allows the Court to reconsider final parenting orders.

4. Role of Independent Children’s Lawyers (ICLs)

Independent Children’s Lawyers (ICLs) are now mandated to meet with the child and provide them an opportunity to express their views before final orders, unless exceptions apply. Exceptions include a child under 5, unwillingness to meet, or exceptional circumstances posing harm risks.

ICLs retain discretion regarding the timing, frequency, and method of obtaining the child's views. When expressed, the ICL must present the child's views to the Court.

Should you require guidance on these amendments to the Family Law Act, our seasoned family lawyers are available for consultation.