Effective from 6 May 2024, the amendments made to the Family Law Act 1975 (Cth) by the Family Law Amendment Act 2023 (Cth), are now in force.
These amendments will be applicable to all current and future parenting cases in Court, regardless of whether an application has already been submitted or not, with the exception of cases where a final hearing has already begun.
The Court has immediately adopted some changes in forms and processes that may catch the unwary lawyer out.
What changes have occurred?
The amendments introduces significant changes to sections 60CA to 60CC of the Family Law Act. The Bill aims to make the family law system safer and simpler, ensuring that children’s best interests are at its centre.
The Family Law Amendment Act 2023[1] represents a significant shift in the approach to determining the best interests of the child in parenting cases. The changes aim to provide more clarity and simplicity.[2] They intend to increase the focus on a child’s best interests more holistically and subjectively. The legislation aims to take a more nuanced approach and recognizes that the needs of every case are different and require careful consideration.
The new section 60CC (2) lays down five “general” considerations to determine the child’s best interests along with a ‘catch-all’ provision for any other relevant factors. The Act also removes the distinction between classes of considerations by listing them as ‘general’ considerations as opposed to ‘primary’ and ‘secondary’ considerations existing in the current regime.[3] The Amendment Act aims to simplify the process of determining what is in the child’s best interests by reducing the total number of considerations from 21 to just five.[4]
Essentially, the most notable changes are:
- The removal of the presumption of equal shared parental responsibility. The Court is no longer obligated by law to assess whether an equal time arrangement is in the best interests of the children. Instead, parents are now “encouraged” to consult each other on important long-term matters concerning their children, as long as it is safe to do so.
- Simplification of the factors to be considered when determining the child’s best interest.
- The first new factor considers and puts emphasis on the safety of the child and the carers under subsections (a) and (b) of section 60CC (2) of the Amendment Act. Extra emphasis is laid down on safety from family violence, abuse and neglect. Subsection 2A the Act compels the inclusion of consideration of these factors by the court by stating it “must” consider any history of family violence, abuse or neglect any applicable family orders.[5] The legislation wants the courts to give a higher consideration to the safety factors involved.
- The second factor considers any views expressed by the child. The factor in the current Act is similar to the one proposed however the key difference is the removal of consideration of additional factors that give substance to the child’s views. For example, supporting factors such as maturity and level of understanding[6] need not be emphasised to add weight to the child’s views at the time of making a decision. In the new amendment, the child’s views alone carry substance.[7] This can provide children with an opportunity to have a stronger say in the decision-making process and is another step in the direction of making the Act more child-focused.
- The third new factor in the amendment Act is a leap in the right direction i.e., towards a more child-safety-oriented family law era. It simplifies the previously muddled section (g) as it lays down 4 simple needs of the child which are essential to consider best interests, these are developmental, psychological, emotional and cultural.[8]
- Under the fourth consideration in the amendment, the court must consider the capacity of each person having parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.[9]
- The fifth factor considers the benefit to the child on having a relationship with the parents.[10] The section also considers the child being able to have a relationship with other people “significant” to the child, where it is safe to do so. The emphasis again put on safety which clearly demonstrates the aim of the Amendment to make it more child-focused.
- The last proposed factor is catch-all provision for any other factors that the court may think are relevant.
Finally, a separate consideration under subsection 3 is introduced for Aboriginal and Torres Strait Islander children, recognizing their right to maintain and enjoy their culture.
- A new Section to codify the rule in Rice v Asplund (1979) FLC 90-725 for the consideration of final parenting orders. The Bill also provides clarity on when a court can modify an existing final parenting order and mandates that children involved in any proceedings related to them should have a voice and a right to be heard. These changes would make section 60CC more aligned with the UN Convention on the Rights of the Child, particularly Article 12, which emphasizes a child’s right to express their views.[11]
- A requirement that an independent Childrens Lawyer meet directly with the child and provide an opportunity to express any views.
- The amendment also enable the Government to regulate family report writers. As it is expected that there would be a greater emphasis on external sources of information, such as Child Impact, Family, and Single Expert Reports, as the Court relies largely on them.
With these revisions, it is possible that there may be a rise in litigation, similar to what occurred when the Family Law Act was previously revised. Parents may need clarification regarding the implications of the amendments on their family situation or may even seek to modify their parenting arrangements.
If you have any concerns regarding the potential effects of the amendments to the Family Law Act on yourself or your child(ren), Call our friendly team at Nevett Ford Lawyers on 03 9614 7111 to discuss your situation.
[1] Family Law Amendment Act 202.
[2] Avril Janks, “In the best interests of the child? The Family Law Amendment Bill”, LSJ (online, 12 September 2023) < https://lsj.com.au/articles/in-the-best-interests-of-the-child-the-family-law-amendment-bill/>.
[3] Family Law Act 1975 (Cth).
[4] Avril Janks, “In the best interests of the child? The Family Law Amendment Bill”, LSJ (online, 12 September 2023) < https://lsj.com.au/articles/in-the-best-interests-of-the-child-the-family-law-amendment-bill/>.
[5] Family Law Amendment Bill 2023.
[6] Family Law Act 1975 (Cth).
[7] Family Law Amendment Bill 2023.
[8] Ibid.
[9] Family Law Amendment Bill 2023.
[10] Ibid.
[11] Ibid.