Important Changes to the Family Law Act

How changes to the Family Law Act may affect your family law parenting matter

By Managing Associate Dr Steve Cohen and Family Lawyer Michelle Maio

Introduction

On 6 May 2023, The Family Law Amendment Act 2023 brought in four big changes to the Family Law Act. These changes include:

Both parents are not automatically presumed to share responsibility of their child;
New rules about what’s best for the child;
Clearer reasons for changing final parenting orders; and
Independent Children’s Lawyers must talk to the child.

These changes are hoped to help the Family Court and parents address disputes in a safe, efficient manner, with a clear focus on the child’s best interests.

The new changes only apply to matters from 6 May 2024 onward. Any matters started prior to 6 May 2024 are not affected by these changes.

The changes

No more assumption that both parents automatically share responsibility of the child equally.

Before 6 May 2024, the Family Law Act assumed it was best for kids if both parents shared responsibility of the child equally regarding long-term decisions affecting the child.

The changes now allow for more customised arrangements for separated parents that address specific parts of parental responsibility. So, for example, one parent may make decisions regarding the child’s schooling, while the other decides upon their participation in religious traditions.

As part of the changes, the term “substantial and significant time” has been removed from the Family Law Act. Before, if “equal time” with both parents wasn’t best for the child, the court had to consider giving one parent “substantial and significant time.” Now, without this rule, the court has more flexibility to focus on what works best for the child.

New rules around what’s best for the child

The Family Law Act no longer makes the court look at ‘primary’ and ‘additional’ considerations when deciding what’s best for a child. Now, Section 60CC of the Family Law Act lists sex ‘general considerations’ the court looks at, all equally important.

The need to promote the safety of the child and each person who has care of the child, whether or not this person has parental responsibility for the child (including safety from family violence, abuse, neglect or other harm);
Any views expressed by the child;
The developmental, psychological, emotional and cultural needs of the child;
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;
The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
Anything else that is relevant to the particular circumstances of the child.

For Aboriginal or Torres Strait Islander children, there are two extra considerations about staying connected to their culture.

These changes let the court decide how much each consideration matters, instead of following a strict guideline.

Clearer reasons for changing final parenting orders

From 6 May 2024, the court may only consider a change to final parenting orders if there has been:
- A ‘significant change in a parent’s situation’; and
- It’s either better for the child to change the Final Order; or
- All parties to the Final Order agree to change the Final Order, even if there hasn’t been a big change in circumstances to a party or it’s not what’s best for the child.
This rule, first discussed in the 1979 case Rice v Asplund, has now been written into Section 65DAA of the Family Law Act.

With Section 65DAA in place, when looking at a new application after final parenting orders are made, the court can consider:
- Why the Final Order was made and the material on which it was based;
- Whether there is any new material that was not available to the court at the time the Final Order was made;
- The likelihood that if reviewing the Final Order will cause a big change to how it works; and
- How changing the Final Order could help or harm the child.

Requiring the Independent Children’s Lawyer to speak with the child

The Independent Children’s Lawyer (ICL) plays a key role in family law matters. Since children are generally not permitted to attend court, an ICL is appointed to represent the child’s best interest independently and speak to the court on their behalf.

Prior to 6 May 2024, the ICL was not required to meet with and speak with the child concerned. Section 68LA of the Family Law Act now requires ICL’s to meet with the child unless:

the child is under the age of 5 years (unless it’s okay to do so);
the child does not want to meet with the ICL or express their views; or
there are ‘exceptional circumstances’ where the ICL is not required to meet with the child. For example, if meeting the child could cause physical or psychological harm to the child.

Conclusion

The main goal of the Family Law Amendment Act 2023 was to improve the family law system to better prioritise the safety, well-being, and best interests of the child. Six months after the changes started, it’s still too soon to know if the changes are meeting their intended goals.

However, they seem to focus more on what’s best for the child by removing the rule that both parents share equal responsibility of the child and making sure the child’s views are taken into account.

How can HHG Legal Group help?

If you require any advice regarding the impact of these changes on your family law parenting matter, please do not hesitate to contact HHG Legal Group, so one of our lawyers can assist with your enquiry.

*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.