Australia’s family law landscape has witnessed significant transformations impacting separated parents, especially with the recent Family Law Amendment Act 2023 (Cth) (FLAA) which will operate from 6 May 2024. This is a guide for parents who want to better understand how recent changes may affect their personal situation and parenting decisions.
Wondering what changes to the Family Law Act mean for your family? A guide for parents navigating the family law system in 2024
If you are a parent currently going through the family law system, you may be aware that some significant changes were made to the Family Law Act in 2023. These new legal guidelines are some of the most significant changes in the last few decades, and while they won’t change much for some families, they may have a significant impact on others.
The Australian Government approved these changes (amendments) in November 2023 as part of broader family law reforms and they will be used in the family law system from 6 May, 2024, by the Federal Circuit and Family Court of Australia when determining parenting orders.
This is a simple guide to help you understand the changes, but please chat with your family lawyer about your family circumstances to get a clear idea of how they may affect your matter. Let’s get started.
Will the new family law amendments affect my current parenting orders?
No, they will not change any formal arrangements or orders finalised by May 2024 or any time before then. However, if your matter ends up in the family law system after this time, or you decide to change current orders, the newly amended laws will be used to determine the outcome.
Will it be harder to change parenting orders after the Family Law Amendment Bill starts in May 2024?
Possibly, but it will depend on the nature of your matter. If you have genuine reasons to make changes, you will still be able to change your orders.
The court will want to know a few things before changing final parenting orders, including:
- If there has been a significant change in your parenting circumstances. This could be a child or parent having significant ill-health, one parent moving for work, or perhaps a child wanting to be with one parent more than the other
- If changing will have a positive impact (which the courts define as ‘the best interests of a child’) on the child or children involved
If there have not been significant changes, or it can’t be shown that it is in the child’s best interests, but everyone agrees to the new order being made, it can still be made.
This section of the law is 65DAAA Family Law Act 1975 (Cth). These changes have been made to reduce the amount of lengthy court battles for families and prevent separated couples from repeatedly going back to court regarding parenting arrangements.
The changes reflect a well-known Australian family law case in 1979 known widely as the Rice & Asplund. This case highlighted the need to show that significant changes had occurred after final parenting orders were made before they could be varied. This could be new information coming to light that was not previously heard, and it recognises that continued family law disputes are not in the best interests of a child.
The changes aim to ensure that parties know the legal principles because they are set out in the Act rather than in case law.
This means that a court needs to consider if it will be harmful or beneficial to a child to change previously made final orders, with a commitment to preventing harmful litigation. It also is a step towards preventing systems abuse and legal coercion.
Children’s best interests take centre stage.
The best interests of a child have always been a core focus of family law, but new amendments place them at the centre stage of family law proceedings. This can get tricky when two parents who disagree believe they are both acting well forin the best interests of their children. Often, the best thing for a child may not ultimately be what either parent wants, but instead, they should be concerned with what a child needs.
So, how do the courts assess a child’s ‘best interests’?
- Is the child happy, healthy and safe from harm or neglect?
- What does the child feel? What have they expressed that they want? Are they mature enough for their views to be taken into account?
- Are their developmental, psychological, emotional and cultural needs being met?
- Having healthy relationships with their mother, father, step-parents, uncles, aunties and grandparents when it is safe to do so
- Meeting unique factors of the child’s needs – which may be having support for a medical condition or being encouraged to pursue what matters to them
- To enjoy their culture, especially if they have Aboriginal or Torres Strait Islander heritage.
Stricter rules for the protection of family violence survivors.
Over the years, many concerns have been raised about family law rulings that have not fully taken into account the impact of family violence. There have been instances in which shared care has been granted after a history of violence in the home, making it impossible for children and abused parent to live in safety.
With over 64% of individuals in family law proceedings having expressed that they have experienced family violence, it’s clear that changes need to be made. The new laws will require the courts to fully consider any previous or current history of family violence and how this could affect parties before making final orders. Further family violence protections have been welcomed by many legal practitioners in the hope of reducing the instances of ongoing family violence affecting victims and children.
Sharing personal details of your family court matter – a big no
In general, sharing details of legal matters decided on by the court isn’t a good idea, due to privacy laws, the impact on children and the ability to affect the reputation of someone else, or damage their personal or professional credibility. There have always been specific protections in the Family Law Act.
New family law amendments make this even clearer but also take,into account that parties need support from family and friends as well as the growth of social media. They aim to protect parties and to clarify restrictions about what is and isn’t okay to share with others. Identifying the other party publicly (by name, photo, video or describing them), or providing details about where they live or work, or other clear links to their identity, is seen as a clear breach of the other party’s privacy.
Generally, talking to your support people about the situation isn’t a breach, but it’s worth being mindful that texts and messages can be screenshotted and used as evidence, so it’s best to keep your conversations free of too much negativity. Social media should be used very cautiously as publication of identifying details may be a criminal offence.
The importance of culture and connection is recognised
A long era of the removal of children from family homes, in particular indigenous and Torres Strait Islander children, in Australia’s family law system, has highlighted the importance of children staying connected with their culture. In family law matters, this will also apply to any child whose parents are seeking family law orders, to ensure that children have the ability to remain connected to their culture, and have their traditional concepts of family respected when parenting orders are made.
Indigenous communities, including Aboriginal and Torres Strait Islander peoples, will see greater recognition of their cultural values and concepts of family in the decision-making process, which many feels was long overdue. This encourages further recognition and respect for children to stay connected with their kin and their culture, and to ensure that the family law system makes a genuine effort to reflect this when parenting arrangements are being made.
Make-up time – more power for registrars to make an order for time lost by one parent due to the actions of the other parent
In many matters in the past where a parent has lost time with a child due to the unjustified actions of the other parent, even if in breach of a final order, the process to regain lost time with a child has not always been straightforward.
From 6 May, 2024, family court registrars will be empowered with the ability to issue orders for lost time to be made up if a child has missed time with a parent due to the actions of the other parent. How this will play out is uncertain, but it has the potential to make a valuable difference for parents who have been wrongfully denied time with their children because it may be quicker, easier and cheaper to obtain orders for “make up time”.
Equal time & equal shared parental responsibility are no longer the default
In the past, it’s been accepted that in most family court matters, parents will have equal and shared decision-making responsibility unless otherwise indicated. This means that parents were required to talk to each other and reach agreement before making choices that would significantly impact their child, and reach agreement on the best course of action.
Under Section 61DAA, the Federal Circiut and Family Court has required that parents communicate with each other, and make a genuine effort to reach a mutual decision that is beneficial to their child.
This will no longer be a given, or a presumed default for the court. It’s likely that the courts will look at matters on a case-by-case basis as to who is to be responsible for which decisions.
‘Significant and substantial time’ will no longer be a reference point in the new amendments, although having a meaningful relationship with both parents and other significant people is an indicator in the best interests of the child. The court can and likely will still issue orders for equal parenting time in many instances, especially when parents are able to jointly make decisions and there is no family violence.
Independent Children’s Lawyers – (ICLs) will become more important for both Australian family law matters and Hague Convention matters
Independent Children’s Lawyers (ICLs) (lawyers who work directly with children to express their needs) who are appointed in family law matters will now need to meet the child they are working with and take into account the views they wish to express, which was not a requirement previously. The exceptions to this? Primarily, if a child is under the age of 5 or does not wish to meet with them.
Using an Independent Children’s Lawyer will also become more frequent in cross-jurisdictional cases involving the Hague Convention. The Hague Convention on the Civil Aspects of International Child Abduction is an agreement between Australia’s government and a large number of other countries that is relied upon when one parent takes a child from an agreement country. This agreement allows law enforcement from member countries to work together to return children abducted and taken to one of these countries.
In the past, ICLs were not commonly used in these matters, but in the future, they will likely be used more often to represent the needs of children in Hague Convention matters.
Family report writers to be regulated, ensuring reports are prepared in a safe and appropriate manner
Family law proceedings can be immensely stressful for adults, and their impact on children can be even more distressing. There are times that the court will seek the views of the children involved, which an independent third party usually does. This may be a psychologist or someone qualified to understand family dynamics, such as a social worker.
Child Experts are generally employed to do this work, demonstrating all parties’ views, co-parenting family dynamics and other important information. The collective aim is to regulate family report writers to ensure that reports are prepared safely and appropriately, considering the child’s best interests and wellbeing.
Better sharing of information to protect children at risk of harm
The new legislation encourages information sharing between relevant agencies and professionals involved in family law matters, facilitating a more connected approach to child protection and family support.
This will make matters where child safety is a factor much easier to navigate and increase current child protection systems through better availability of information and a stronger ability to communicate about issues that may impact a child’s wellbeing. This will help protect the child’s best interests by ensuring that information is not missed when outcomes depend on a ‘whole picture’ scenario.
The amendments aim to address the shortcomings and challenges faced by the previous system, particularly in cases involving family violence, child abuse, and parental conflict.
A ‘wait-and-see’ approach
While these amendments aim to simplify and clarify family law processes, there are potential concerns and expected positives. The removal of equal shared parental responsibility may lead to increased litigation, but it also offers further protections for victims of family violence.
As with any new laws or amendments made to existing laws, it will be up to the interpretation of the courts and family law experts to see how they are applied. If you need assistance clarifying sections of the new amendments, please contact the team at Forte Family Lawyers today.
This article is not intended as legal advice; consulting a legal professional is recommended for individual situations.
Further resources to help you understand the implications and impacts of Australia’s landmark family law reforms
- You can read Jacky Campbell’s in-depth article on Family Law Reforms here: https://fortefamilylawyers.com.au/family-law-amendment-bill-2023/
- Watch Jacky Campbell & Johannes Schmidt (Accredited Mediator & Barrister-at-Law) on the TEN: The Education Networks’ fireside chat about upcoming changes to the Family Law Act 1975, passed under the Family Law Amendment Bill 2023. here: https://www.youtube.com/watch?v=B5JmZQjMVw0
- You can also read a summary of this article here: https://fortefamilylawyers.com.au/family-law-reforms-in-2023/
- The Australian Governor General’s Fact Sheet is here for further information.
This article is not intended as legal advice; consulting a legal professional is recommended for individual situations.
