Family Law Act Amendments: Understanding the Impact on Clients and Practitioners
On 6 May 2024, the long-awaited Family Law Amendment Act 2023 (Cth) came into effect. These significant changes to the family law jurisdiction reshape how courts, practitioners, and clients approach parenting proceedings with the aim of simplifying the legislation, improving access, and reducing delays. At their core, these Family Law Act amendments are designed to facilitate just and equitable resolutions for families involved in family law disputes.
Key Changes in the Family Law Amendment Act
Best Interests of the Child
The ‘best interests of the child’ has always been a core focus of the family law jurisdiction. The Family Law Act amendments put this notion at the forefront of family law proceedings. Disagreements on defining the ‘best interests’ of the child can become contentious between parents and other third parties. Therefore, the Court prioritises the child’s needs over the parents’ desires. The Court assesses the child’s needs based on several factors:
- Ensuring the child is safe and not exposed to family violence, abuse, neglect, or other harm
- The views expressed by the child
- Any developmental, psychological, emotional, and cultural needs of the child
- Each parent’s capacity to meet these needs
- The benefit of the child’s relationship with their parents or other significant people, where it is safe to do so
- Any other relevant circumstances of the child
Details of Family Court Matters
The Amendment Act repeals section 121 of the Family Law Act, which restricted the publication of court proceedings to protect the privacy of the parties involved. It replaces this section with Part XIVB, which maintains these privacy protections but simplifies the language and provides clearer guidelines. This change ensures that the law remains accessible and understandable while continuing to safeguard the confidentiality of family law matters.
Protections for Survivors
The new subsection 60CC(2A) emphasises the importance of considering family violence orders and any history of family violence, abuse, and neglect when deciding future parenting arrangements. These Family Law Act amendments protect survivors who must reach arrangements with perpetrators. By considering past incidents of violence and abuse, the Court can make more informed decisions that prioritise the safety and well-being of survivors and their children.
Cultural and Connection Considerations
Schedule 3 applies where there is an Aboriginal or Torres Strait Islander child. It ensures the child has the support, opportunity, and encouragement necessary to connect with their family and community, culture, country, and language. The law considers maintaining a cultural connection as the child’s right and evaluates how a parenting order might impact that right. Additionally, the scope of ‘relative’ and ‘member of the family’ now includes broader family concepts for Aboriginal or Torres Strait Islander communities.
Make-Up Time
The Amendment Act grants Registrars the authority to make orders for ‘compensatory time’ or ‘make-up time.’ This allows a child to spend additional time with a parent or another person if the original parenting order was not followed. This ensures fairness by addressing situations where one party’s non-compliance has disrupted the agreed-upon parenting schedule.
No Default of Time or Responsibilities
The presumption of equal shared parental responsibility, previously outlined in section 61DA, has been repealed. This presumption was often misunderstood as a right to equal time arrangements. Instead, the Court now has broader powers to determine what is in the child’s best interests and whether joint decisions should be made regarding major long-term issues. For non-major decisions, parents are not required to consult after parenting orders are made. The removal of the presumption avoids misinterpretations and provides additional guidance on the Court’s authority to make orders regarding decision-making responsibilities.
Role of Independent Children’s Lawyers (ICLs)
The Family Law Act now mandates that Independent Children’s Lawyers (ICLs) meet with children and give them the opportunity to express their views. This requirement also applies to cases under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. These Family Law Act amendments ensure that ICL practices are consistent and that children can voice their perspectives in decisions that affect their best interests. However, there are some exceptions, such as for children under five or those who do not wish to meet with the ICL.
Family Report Writers
The Amendment Act allows the Government to regulate family report writers’ standards and obligations. Introducing these regulations involves consulting key stakeholders and assessing potential approaches. Therefore, these changes aim to enhance the competence and accountability of family report writers under the law.
Case Management and Procedure
There are two key changes to case management of parenting matters:
- Harmful Proceedings Orders: These orders prevent a vexatious litigant from filing new applications without Court approval. The Court or a party to a proceeding can bring such applications. The Court must be satisfied that further proceedings would harm the respondent. ‘Harm’ is broadly interpreted and includes psychological distress and other adverse effects on a party’s financial standing or parenting ability.
- Overarching Purpose of Family Law Practice and Procedure: This aims to facilitate just and equitable dispute resolutions by prioritising the best interests of the child, ensuring family safety, focusing on legal aspects, and resolving matters efficiently and inexpensively.
Existing Final Orders
Existing parenting orders remain unchanged. To modify orders, the Court must consider significant changes in circumstances and determine if revisiting the orders is in the child’s best interests. Without meeting these criteria, changes require the agreement of the other parent or party.
Moving Forward – The Future of Family Law
The legal profession is now on a new trajectory with the Family Law Act amendments. These changes aim to address complexities and gaps in the previous law, enhancing outcomes for families and children. However, there will likely be uncertainty regarding their practical application and effectiveness. An influx of cases and leading authorities in the coming years will help measure the impact of these amendments. Therefore, it remains to be seen whether these reforms will lead to improved outcomes in family law disputes.
The legal profession and those affected by the changes will need to stay informed and adapt to these new regulations. Practitioners must understand the nuances of the amendments and their impact on clients. Continuous education and training on these changes will help ensure that practitioners provide the best possible advice and representation.
