Last year, the Family Law Amendment Act 2023 was passed. The provisions of this Act are now in effect.
The Family Law Amendment Act 2023 primarily made changes to the Family Law Act 1975 about:
→ 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.
These changes took effect from 6 May 2024 to all new and existing proceedings, except where the final hearing had already begun.
The child’s best interests is the paramount consideration in making a parenting order. That was the case before these changes to the law and will remain so.
Previously, as a result of the Family Law Amendment (Shared Parental Responsibility) Act 2006, a court would determine what is in a child’s best interests by considering the following ‘primary considerations’:
(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Courts would also have to consider a number of ‘Additional considerations’, including any views expressed by the child, the nature of the relationship of the child with the child’s parents & other persons, the extent to which each of the child’s parents has taken (or failed to take) the opportunity to participate in making decisions, spend time & communicate with the child, and practical difficulty & expense of a child spending time with and communicating with a parent.
Section 61DA of the Family Law Act imposed a presumption introduced under the Family Law Amendment (Shared Parental Responsibility) Act 2006 that it is in the best interests of the child for the child‘s parents to have equal shared parental responsibility for the child. That presumption did not apply if there were reasonable grounds to believe that a parent of the child had engaged in abuse of a child or family violence.
Section 61B of the Family Law Act defined parental responsibility to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
What will the court consider is in the best interests of my child?
The Court will consider at least six factors to decide what parenting arrangements will be in the best interests of your child.
These factors include:
→ the safety of the child and people who care for the child (including any history of family violence and family violence orders)
→ the child’s views
→ the developmental, psychological, emotional and cultural needs of the child
→ the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs
→ the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings), and
→ anything else that is relevant to the particular circumstances of the child.
If a child is Aboriginal or Torres Strait Islander, the Court must also consider:
(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
Decision-making for children
The changes also abolish the presumption in favour of equal shared parental responsibility.
Furthermore, the term equal shared parental responsibility has been replaced by joint decision – making about major long – term issues.
Likewise, the term sole parental responsibility, which involved one parent making decisions for the child, is now called sole decision – making in relation to all or specified major long – term issues.
Reconsidering final parenting orders
Section s65DAAA, a new section of the Family Law Act, introduces the common law rule in Rice v Asplund:
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
Arguably, this means that the reopening of an order under the Court rules will no longer be possible if the order in question is a ‘final parenting order’, unless it satisfies these requirements eg if the Order was made because of a party’s absence.
The Family Law Amendment Act 2023 also makes amendments to the Federal Circuit and Family Court of Australia Act 2021 to allow registrars of the Federal Circuit and Family Court of Australia (FCFCOA) to be delegated the power to impose a make-up time parent order in contravention proceedings
For the most part, the changes are more explanatory and about clarifying some of the terminology in order to make the law easier for ordinary people to comprehend them.
Whether these amendments have a substantive impact on the outcomes of parenting cases remains to be seen. We hope that it does not mean that a child’s relationship with each of their parents will be generally considered somewhat less important. And the undue emphasis on Aboriginal and Torres Strait Islander culture seems like a set of politically correct requirements which continue the tokenistic, profligate and generally unsuccessful approach to Indigenous affairs in Australia.
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