By Adele Dang

On 6 May 2024, changes to the Family Law Act 1975 (‘FLA’) will take effect, pursuant to the Family Law (Amendment) Act 2023 (‘FLAA’). These changes will affect parents who have current parenting matters before the Court which will not be finalised before 6 May 2024. Existing Court orders will not be impacted. They will emphasise the best interests of the child/ren as the Court’s paramount consideration when making parenting orders.

Key changes

There are four major changes listed in Schedule 1 of the FLAA:

1.       The Court will consider a new and shortened list of non-hierarchical factors to take into consideration. The removal of the distinction between ‘primary’ and ‘additional’ considerations allows Courts to better consider the unique circumstances of each matter, which forefront the best interests of the child as paramount (FLA s 60CC(2)). These factors are:

a)       What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for 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 has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

e)      The benefit to the child of being able to have a relationship with their parents, and other people who are significant to the child, where it is safe to do so; and

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

 2.       The presumption of equal shared responsibility, previously found in FLA s 61DA, has been repealed. Courts will thus no longer have to presume that the best interests of the child involve the child’s parents making joint decisions about major long-term issues such as education, health and religious and cultural upbringing.

 3.       The mandatory consideration of an order for equal shared parental responsibility that the child spend equal time, or substantial and significant time, with each parent, previously found in FLA s 65DAA, has also been repealed. However, it is still within the Court’s discretion to consider such arrangements if it is in the child’s best interests.

 4.       Pursuant to the changes outlined in (2), namely the removal of the presumption of equal shared responsibility, the FLA provides further guidance on consultation on major long-term issues:

a)       s 61CA is a new non-enforceable section. It signals to parents that they are encouraged to consult each other about major long-term issues in relation to the child, having regard to the bests interests of the child as the paramount consideration;

b)      s 61D(3) highlights that Courts will still make orders regarding the allocation of parental responsibility;

c)       s 61DAA sets out that when an order is made for joint decision-making on major long-term issues, parties are required to consult each other and make a genuine effort to come to a joint decision.

Schedule 4 of the FLAA also provides for amendments to provisions about Independent Children’s Lawyers (‘ICL’). FLA s 68LA(5A) now provides that the ICL must meet with a child over 5 years of age and provide them the opportunity to express their views, although the way in which this is carried out still remains in the ICL’s discretion (FLA s 68LA(5AA)).

How these changes impact Aboriginal and Torres Strait Islander children

There are additional considerations for the Court to be mindful of where the parental matter involves Aboriginal and Torres Strait Islander children:

1.       In addition to the new list of factors in s 60CC(2), s 60CC(3) provides an additional stand-alone ‘best interest’ factor where the parenting order is made for Aboriginal or Torres Strait Islander children. The Court must consider their right to enjoy their culture, and the support they will receive in order to do so.

 2.       The definitions of the terms ‘relative of a person’ in subs-4(1AD) and ‘member of the family’ in subs-4(1AB) have been expanded and are to be applied to certain sections of the FLA with reference to a child’s Aboriginal or Torres Strait Islander culture. They reflect the broader Aboriginal and Torres Strait Islander concepts of family.

If you are a parent who is considering how these changes will apply to your individual circumstances, we can assist you.

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.