Changes to the Family Law Act 1975 - what you need to know
The Family Law Act 1975 focuses on the rights of children and covers the responsibilities that each parent has in raising their children. Amendments to the Family Law Act were passed by the Australian Parliament on 19 October 2023 and will come into effect on the 6th May 2024. The changes are designed to improve what the courts must consider when determining what is in the best interests of a child and how separated parents are to make decisions about long-term issues for their children.
What are the changes and how will this impact me?
Equal shared parent responsibility
Previously, when determining parenting arrangements, it was presumed that parents had equal shared responsibility for major long-term decisions such as education, religion, relocations and healthcare. From May 6th 2024, the presumption of equal shared parental responsibility will be officially removed as the focus will be based solely on the best interests of the children in each individual case. If the Family court makes an order for parents to have joint decision making responsibility, parties will be required to consult with each other and make a genuine effort to come to a joint decision on long-term issues, (if it is safe to do so). However, the court may determine that one parent is best placed to make some or all long-term decisions for example they would like their child to be vaccinated if the other parent is a nonvaxer.
Shared time
It has never been a requirement under Australian Law for parents to automatically have equal time with their children following separation. Parents can come to this arrangement mutually if it suits their circumstances or a court determines it is in the best interest of the children. However, this will no longer be the default or presumed, the court will make decisions on a case-by-case basis, ensuring that children have a meaningful relationship with both parents.
How are the best interests of a child determined by the court?
The focus when determining the best interests of the children is on safety and their individual needs.
Specifically, the court will look at the following factors:
The safety, of the child including protection from violence, abuse and neglect
Consideration of the views expressed by the child
The child's developmental, emotional, cultural and psychological needs
The capacity of each person with parental responsibility to provide for the child's needs
The benefit of having a relationship with each parent or other significant people in their life (for e.g. grandparents or siblings), when it is safe for them to do so
Anything else that is relevant to the individual circumstances of the child.
Family violence orders are also considered, including a history of family violence, abuse or neglect involving the child or persons caring for the child.
Honoring cultural rights
When addressing the best interests of the children, the amendments to the act will now consider the rights of Aboriginal or Torres Strait Islander children to connect with their family, culture, community, language and country. In addition, the definition of ‘member of the family” in the Family Law Act is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship.
Requirement for an Independent Children’s Lawyer
In situations where an Independent Children’s Lawyer (ICL) is appointed to represent the best interests of a child, they must:
Meet directly with the child if they are over 5 years old
Provide the child the opportunity to express their views in relation to the matter
The Independent Children’s Lawyer (ICL) is not required to meet with the child if:
The child does not want to meet with the ICL or express their views
Or if there are other exceptional circumstances such as the meeting would have a significant adverse effect on the well-being of the child
Final Parenting Orders
The amendment to the act clarifies when Final Parenting Orders may be reconsidered. The party seeking the change is required to show that there has been a significant change in the circumstances relating to the child compared to when the final orders were made. In addition, the best interest of the child will be considered to determine whether the final parenting order should be changed.
Will this impact my existing orders?
No, the amendments to the act do not mean existing parenting orders will be changed. This will only apply to new or parenting proceedings that are underway, with the exception if a final hearing has begun. For more information on how this will impact your matter, please seek legal advice for your individual circumstances.
For more information visit the Australian Governments website
If you would like more information about the changes to the Family Law Act 1975, please contact us for a confidential discussion.
If you would like to read part two of this blog: The Family Law Amendment (Information Sharing) Act 2023 - please click here
Disclaimer: The content presented in this article is offered for informational purposes and should not be construed as legal advice or a substitute for professional guidance. If you have questions or require legal assistance, we strongly recommend consulting with a Solicitor to address your individual circumstances.