Changes to Family Law Act 1975 (Cth) in effect from 6 May 2024

There have been some recent changes to the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”), which came into effect on and from 6 May 2024. If you have current parenting proceedings before the Federal Circuit and Family Court of Australia that have not been heard on a final basis by 6 May 2024, then these changes will apply to you. The changes will also apply to your parenting matter if you are not currently before the Court.

The Major Changes

The Family Law Amendment Act 2023 sets out new laws which can be summarised as follows:

1. Section 60B of the Act has been simplified considerably (the parts and principles underlying the act in relation to children) to provide:
   1. That the best interests of the children are met, including insuring their safety; and
   2. Give effect to the Convention on the Rights of the Child (CRC).

Importantly, the simplification removes elements of the Act previously relied up, such as (but not limited to):

1. 1. Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
   2. Ensuring that children received adequate and proper parenting to help them achieve their full potential; and
   3. Ensuring that parent fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

These new changes to the Act are untested, meaning the legal profession remains unsure of their overall impact, at this stage.

2. Section 60CC of the Act has been simplified with a list of six factors that a Court must have regard to when determining what is in the best interests of the child. The changes to this section are largely to remove a “hierarchy” in relationto importance of certain factors and to remove any distinction between “primary” and “secondary” factors for consideration. This new section highlights the relevance of family violence orders and past family violence, abuse and neglect in determining parentingarrangements.

Previously, the list of Section 60CC factors for consideration made reference to a number of matters for consideration that are largely captured in the new “simplified” list. There is also the additional of a standalone ‘best interest’factor requiring the Court to consider the rights of Aboriginal and Torres Strait Islander children to enjoy their culture, as well as the support they will receive to connect to that culture.

3. The presumption of equal shared parental responsibility (previously contained in Section 61DA) has been repealed. This means that the Court no longer has to presume that it is in the best interest of the child for the child’s parentsto be required to make joint decisions in relation to major long-term issues (such as education, health, religious or cultural upbringing). The changes clarify that decisions about parental responsibility should be based on the best interest of the child andthe particular circumstances of each case.
4. Following on from the removal of the presumption of equal shared parental responsibility, the provision that previously required Courts to consider making an Order for “equal time” or “substantial and significant time” with each parent,where an Order for equal shared parental responsibility was made, has also been removed.

It remains open to the Court to consider equal time arrangements, or arrangements that give substantial or significant time with each parent, in accordance with the child’s best interests.

5. The removal of the presumption of equal shared parental responsibility has resulted in new guidelines from the Court on joint decision-making which can be summarised as follows:
   1. A new section (s61CA) provides that unless there are Orders stating otherwise, and it is safe to do so, parents are encouraged to consult each other about major long-term issues in relation to the child, having regard to the best interestof the child as the paramount consideration. This section is meant to act as a guide for parents on “what to do” about these decisions if there are no Court Orders in place.
   2. A new section (s61D(3)), which works alongside another existing subsection, makes it clear that Courts will still make Orders about the allocation of parental responsibility and adopts new terminology of “joint decision making on majorlong-term issues”.
   3. A new section (s61DAA) set out the effect of an Order made for “joint decision making on major long-term issues”. That is, parties are required to consult with each other and make a genuine effort to come to a joint decision.
6. Our obligations (as solicitors) to our clients have also been revised. We are now required to advise our clients (in line with the amendments made to the factors above):
   1. The best interests of the children are paramount; and
   2. Encourage you to act in the child’s best interests by applying the considerations set out in the new subsection.
7. Changes have also been made to how you can “re-open” a matter after final Orders have been made. The case law, which previously guided these principles has been codified to make clear that the Court must not reconsider the final parentingorder unless:-
   1. The Court has considered whether there has been a significant change of circumstances since the final parenting Order was made; and
   2. The Court is satisfied that it is in the best interests of the child for the final parenting order to be reconsidered.
8. Provisions about the consequences of non-compliance with parenting Orders have been redrafted to provide clarity and to make it easier for the Court to apply the provisions. One of these changes is to delegate new powers to Registrar’sto make an Order for “makeup” time with a parent without yet having made a finding about Contravention.
9. The definitions of “relative” and “member of the family” have been expanded to include Aboriginal and Torres Strait Islander concepts of family.
10. Amendments have been made to provisions about Independent Children’s Lawyers (“ICL”), including a requirement for them to meet with the children and to give the child an opportunity to express a view (unless an exception applies, forinstance, if the child is under five years of age or if the child does not want to meet with the ICL). ICLs may use their discretion in relation to how often, when and how the child is provided with an opportunity to express views. This discretion is alsosubject to the direction of the Court. The views expressed by the child are required to be put before the Court for consideration.
11. Two new parts have been introduced to the Act:
    1. Part 1 – which introduces “harmful proceedings orders” to prevent a vexatious litigant from filing and serving new applications with first obtaining the leave of the Court. This Court will have the power to make such Orders at any timeproceedings are on foot and needs to be satisfied that there are reasonable grounds to believe that further proceedings would be harmful to the Respondent. Harm can include psychological harm or oppression, major mental distress, behaviour which causes a detrimentaleffect on the other party’s capacity to care of a child, or financial harm.
    2. Part 2 – broadens and extends the “overarching purposes of family law practice and procedure” and the accompanying duty to all proceedings instituted under the Act. The overarching purpose is to facilitate the just resolution of disputes:-
       1. In a way that ensure the safety of families and children;
       2. In relation to proceedings under the Act in which the best interests of a child are the paramount consideration – in a way that promotes the best interests of the child;
       3. According to law; and
       4. As quickly, inexpensively and efficiently as possible.
12. The previous Section 121 of the Act is repealed and replaced (by Part XIVB) which is intended to simplify the language of the old Section and clarify when persons can share identifiable family law information.
13. Changes to Schedule 7 establish a new power for Government to make regulations that would provide standards and requirements to be met by family report writers who prepare family reports.
14. The previously scheduled review of the FCFCOA (Division 1) has been brought forward by two years (to now commence in September 2024).
15. There will be a review of these amendments made to ensure the new provisions are operating as intended (to commence as soon as possible after the third anniversary of the commencement of the Amendment Act, and be completed within twelvemonths).

There have also been some changes to the Court forms required to be filed (though in some instances a grace period does apply).

General Comments

There is little consensus amongst the profession (including our judiciary) about the likely impact of the changes. Some say there will be little difference in the outcome of matters (as if no changes had been made) given the discretion afforded to the judiciary. Others say that changes to provisions (and the removal of elements like a “child’s right to a meaningful relationship with both of their parents”) are likely to have a broader impact.

At Murdoch Lawyers, we have obtained various opinions on these matters to ensure we are across all possible outcomes.

Do you have questions about these changes and how they might affect your individual circumstances? Contact our Family Law Team.

Download the Factsheet for parents and parties.