Overview of the family law changes from May 2024

On 19 October 2023, the Family Law Amendment Bill 2023 (the Bill) was passed, bringing with it a number of changes that will reshape the current legislative framework of the Family Law Act 1975 (Cth) (the Act). The majority of changes will commence as of 6 May 2024.

The main purpose of the Bill is to amend provisions of the Act relating to how parenting matters are determined.

The changes will impact parents and other people who have standing to apply for parenting orders such as grandparents, or any other person concerned with the care, welfare and development of a child. They will apply to all new and existing proceedings, except where the final hearing has already begun.

Below addresses some of the changes that will be made to the Act once the changes come into effect.

Parental responsibility

One of the major changes to the Act relates to parental responsibility.

Parental responsibility means the duties, power and responsibility that parents have in relation to a child. Parental responsibility refers to the responsibility to make decisions that are necessary to meet a child’s needs, including major long-term decisions about where they will live, the school/s they will attend, significant medical decisions, their name and religious or cultural upbringing.

Under the current legislation, there is a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption may be rebutted if there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, or if it is not in the child’s best interests.

The Bill removes the presumption altogether, and instead, enables the Court to allocate responsibility for decision-making. By reference to “decision-making”, the Bill proposes to move away from the current wording of “parental responsibility”. Effectively under the new legislation, parents may either share all major decisions, or decisions are made solely by one parent, or a parent has responsibility for making certain decisions for the child.

If the Court makes an order for joint decision making, each parent is required to consult each other in relation to such decision and make a genuine effort to come to a joint decision. These changes are reflected in the new section 61DAA.

The Bill also clarifies there is no requirement for a parent to consult on issues that are not considered major long-term decisions if the children are spending time with that parent and that person shares parental responsibility for the children as set out in the new section 61DAB. It is hoped that this section may minimise the likelihood of disputes arising between parents about “non-major” decisions.

Best interests factors

When deciding whether to make a particular parenting order, under the current framework, the Court must regard the best interests of the child as the paramount consideration. In determining what the child’s best interests are, the Court currently looks at the primary and additional considerations contained in section 60CC of the Act.

The Bill sets out a new list of factors that a court must consider when determining the best interests of a child. The new list contained in section 60CC(2) include:

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, 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 and non-hierarchical.

Additional factors in the new subsection 60CC(2A) highlight the relevance of family violence orders and past family violence, abuse and neglect in determining future parenting arrangements.

The new subsection 60CC(3) provides a standalone best interest factor requiring the Court to consider the right of children from Aboriginal or Torres Strait Islander backgrounds to enjoy their culture, as well as the support they will receive to connect with their culture and the likely impact any proposed parenting order will have on that right.

Reconsidering final parenting orders

The new section 65DAAA codifies how subsequent parenting proceedings are to be considered by the Court.

Prior to this change, the Court dealt with subsequent parenting proceedings in accordance with the principles set out in the case of Rice v Asplund (1979) FLC 90-725. This case essentially provides that the Court must not reconsider a final parenting order unless there has been a significant change of circumstances since the final parenting order was made.

For the purposes of dealing with subsequent parenting proceedings, the Bill provides that the Court may have regard to the following 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 reconsidered, 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.

Non-compliance with parenting orders

Unfortunately, it is not uncommon for families to experience difficulties when it comes to compliance with and enforcement of parenting orders by the other parent, or, at times, a child. Non-compliance with parenting orders is stressful for many families. The Bill redrafts Division 13A, which proposes to make the consequences of non-compliance with parenting orders clearer and simpler for parents to understand and to assist parents with identifying the types of remedies that can be sought.