Most significant amendments to the Family Law Act since 2006.

Significant amendments have been made to the Family Law Act 1975 (Cth) which take effect from 6^th of May 2024 and relate to parenting matters.

Until such time as the Court has operated under the new legislation, it is impossible to anticipate how the amendments will be interpreted and applied, however anyone going through a separation where there are children will need to be aware of the new legislation which will apply.

Best interests of the Child.

Prior to the amendments, the legislation required a Court to have regard to the best interests of the child as a paramount consideration. Under the new amendments, the Court must still give primary consideration to the best interests of the child and in doing so, must consider the following factors:

1. What arrangements would promote the safety (including safety from 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 to the child of being able to have a relationship with the child’s parents, or other people who are significant to the child, where it is safe to do so.
6. Anything else that is relevant to the circumstances of the child.

The amendments highlight the relevance of family violence orders and past family violence, abuse, and neglect in determining future parenting arrangements.

Parental responsibility. 

In the absence of any order to the contrary, parents, whether they are separated or in an intact family, have parental responsibility that they can exercise jointly or separately. Parental responsibility encompasses decision making with respect to major long-term decisions such as education, religion, health. The new legislation does not affect that position.

Prior to the amendments being made, if a matter was before the Court, the Court was obliged to presume that it is in the interests of a child for parents to have shared equal parental responsibility for their children. Under the new legislation, that presumption has been repealed and as such, the Court does not need to start from a position of assuming that it will be in a child’s interest for parents to be required to make joint decisions in relation to major long-term issues.

The Court can be asked to order one parent or both parents jointly have parental responsibility, now referred to as joint decision making on long term issues. Because the presumption has been removed, it is possible that future applications to the Court are more likely to assist one parent to obtain sole parental responsibility, particularly in circumstances where there is high parental conflict, where there is family violence and poor co-parenting capacity.

Consultation between parents.

A new section of the Act now provides that unless there are Court orders stating otherwise, and if it 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 interests of the child as the paramount consideration. That section is not enforceable, but it does act as a guide for best practice in relation to parenting after separation.

This suggests an emphasis on parents working collaboratively to parent their children after separation, a concept Clark Panagakos strongly support in most cases.

Live with and time spending.

Prior to the amendments, the Court was required, before making an order in relation to the amount of time children spend with each parent, to firstly consider whether or not it was in the child’s best interest and reasonably practicable for the child to spend equal time with the parents. If the Court considered that equal time was not appropriate, it was required to then consider whether substantial and significant time with each parent was appropriate.

It is still open to a Court to consider equal time and/or substantial or significant time, however it is no longer obliged to do so and certainly is not required to start with that consideration. The Court is duty bound to simply make such orders as it considers provide for the best interests of the child.

Which matters are affected?

From 6 May 2024 the new legislation applies to all matters, even matters that have already been commenced in the Court under the old legislation, other than in matters where a final hearing (trial) has already commenced.

Where to from here?

It is claimed that the reforms aim to simplify the family law process. Whether or not this raft of reforms does indeed provide simplification has yet to be ascertained. Every family is different, and every situation is different. Family law is complex and separated parents should obtain individual and tailored legal advice that takes into account their unique and specific circumstances.

At Clark Panagakos Family Law, we only do family law, and we are abreast of the changes to the legislation and will keep a close eye on how the changes to the legislation play out in the courtroom setting.

For specific advice about your matter, contact one of our experienced practitioners.