Key changes to the Family Law Act 1975

Parenting – Key changes to the  Family Law Act 1975 (Cth)  as and from 6 May 2024

On 19 October 2023, the Family Law Amendment Bill 2023  was passed by the Australian Parliament which introduced significant changes to the Family Law Act 1975 (Cth) (“the Act”)   the majority of which  have applied as and from 6 May 2024, except in some cases where a final hearing has already commenced.

The Bill was  described by the Federal Attorney-General Mark Dreyfus at the time as “ landmark family law reforms “  aimed at making the  Australian family law system more simple, safer  and accessible for separated families and  their  children.

These changes include the removal of the presumption of equal shared parental responsibility, new provisions on decision-making about major long-term issues, a refined list of factors for the court to consider when determining the best interests of the child, simplification of the compliance and enforcement provisions under the Act and mandatory obligations on Independent children's lawyers to meet with children.

Parental responsibility

Parental responsibility means all of  the duties, powers,  responsibilities and authority  that parents have in relation to a child.

At law, each of the parents of a child who is  not 18 years of age has parental responsibility for the child unless parental responsibility is displaced by a parenting order made by the court.

Under the old legislation, there existed a presumption that it was in the best interests of a child for the child's parents to have equal shared parental responsibility , which could be rebutted if there were reasonable grounds to believe a parent had engaged in abuse of the child or family violence or if it was not in the child's best interests. Furthermore, where the presumption of equal shared parental responsibility applied, the Court had to consider  whether it was in the child's best interests to spend equal amounts of time with each parent.

This legislative pathway towards determining  live with/ spend time with parenting orders no longer applies as the  presumption of equal shared parental responsibility has been repealed altogether under the changes to the act , which is one of the more significant changes.

The  Court is still  able to allocate parental responsibility for decision making for a child about major long term issues (such as where a child lives, the school/s that the child will attend, major medical treatment, the child’s  name, religious or cultural upbringing)  and under the new legislation, parents may either share all major decisions or decisions are made solely by one parent or one  parent has responsibility for making certain decisions for the child.

The obligation for parents to consult with each other and to make a genuine effort to come to a joint decision, still applies if a parenting order provides for both parents to have  joint decision-making in relation to all or specific major long-term issues in relation to a child.

These changes have been made after a 2017 bipartisan Parliamentary committee found that the provision of equal shared parental responsibility was being improperly applied in a way that put children at risk and the presumption failed to prioritise the safety of children, a finding that was confirmed by a variety of family law experts.

Best interests factors

Under the changes to the Act, Parenting decisions will have to be based solely on what is in the best interests of  a child.

While under the old legislation, it was also the case that the Court had to regard the best interests of the child as the paramount consideration when making parenting orders, the factors  the Court has to consider to determine what is in a child's best interest has changed. The new list of factors is contained in section 60 CC(2) ) of the Act and includes:

1. What arrangements would promote the safety (including safety from being subjected to or exposed to family violence, abuse, neglect or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child);

2. Any views expressed by the child;

3. The developmental, psychological, emotional and cultural needs of the child;

4. 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.

5. The benefit of 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.

6. Anything else that is relevant to the particular circumstances of the child.

The above list is non exhaustive. It is also significant to note that new subsection 60CC (2A) states the Court must consider  family violence orders  (past and present) that has applied or does apply  to the child or a member of the child’s family  and any history of family violence, abuse and neglect involving the child or  a person caring for the child  in determining future parenting arrangements.

Changing final parenting orders

Prior to the changes to the Act, the Court applied the principles set out in the case of Rice V Asplund (1979) FLC 90 – 725, when dealing with subsequent applications for Parenting orders after Final parenting orders have already been made. In short, the case stands for the principle that a court must not reconsider a Final parenting order unless there has been a material change of circumstances since the Final parenting order was made.

This principle has been codified under the changes to the act, specifically  the new 65DAAA, which states for the purposes of dealing with subsequent parenting proceedings, the Court may have regard to the following factors when considering whether to allow a further application for Parenting orders after Final parenting orders have been made :

1. The reasons for the Final parenting order and the material on which it was based;

2. Whether there is any material available that was not available to the Court that made the final parenting order;

3. The likelihood that if the Final parenting order is recognised, the court will make a new Parenting order that affects the operation of the Final parenting order in a significant way (whether by varying, discharging or suspending the final Parenting order , in whole or in part, or in some other way);

4. Any potential benefit or detriment to the child that might result from reconsidering the Final parenting order.

The above changes to the Act are aimed at ensuring the Court has greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation.

Non-compliance with parenting orders

The new  Division 13  A of the  Act, sets out the consequences of non-compliance with Parenting orders in a more simple way for parents to understand and it also sets out the different types of remedies that can be sought, aimed at assisting parents to identify what appropriate course of action applies to their circumstances.

Other changes

Other changes to the Act  also include :

• Introduction of Part XIVB -which simplifies the previous section 121 of the Act which provides it is a criminal offence to communicate an account of proceedings that identifies  the people involved.
• Requiring independent children's lawyer is to meet directly with children; See s 68 LA (5  A).
• Powers to enable governments regulate family report writers aimed at improving competency and accountability of Family report writers;
• Consideration of parental responsibility  that is inclusive of Aboriginal and Torres Strait Islander  concepts of family,  kinship and child rearing practices. See section 61 F of the Act.

For support on any family law matter please contact one of our friendly team.