A Comprehensive guide to the new 2024 family law reforms

Changes to the Parenting Framework

The following changes to the Family Law Act (the "Act"), made through the Family Law Amendment Act 2023 (Act No. 87 of 2023), are scheduled to take effect from 6 May 2024.

The new reform amendments were aimed at reducing redundancies by simplifying the family law processes, making it easier for claimants to know their rights and settle their parenting and property matters.

The key reforms to the Act in 2024, consist of changes to how the child's best interest is determined, changes to provisions determining equal time and equal parental responsibility, new provisions explicitly laying out the process for varying final parenting orders, and provisions outlining restrictions on identifying related parties involved in family law proceedings to members of the public.

1. Changes to How the "Child's Best Interest" is Determined

The current iteration of s 60CC sets out factors that the court is required to consider when determining the child's best interest. The current version of s 60CC specifies the primary factors as follows: (a) the benefit to the child in having a meaningful relationship with both of the child's parents and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This section is to be repealed and replaced with a new list of factors.

Notably, the new version of s 60CC eliminates the distinction between "primary" and "additional" considerations of factors that the court should weigh in determining the child's best interest. Confusion had arisen where these two primary considerations conflicted with each other. This discrepancy had been brought in numerous legal precedents where the needs to protect the child from family violence contradicted with the other goal of ensuring the child's ongoing meaningful relationship with their parents.

The new version of s 60CC sets out the following matters that the court must consider, without any indication to a hierarchy of considerations:

• Arrangements that would promote the safety (including safety from being subjected or exposed to family violence, abuse, neglect, or other harm) of the child and person who has care of the child,
• Any views expressed by the child.
• The developmental, psychological, emotional and cultural needs of the child.
• The capacity of each person who proposes to have parental responsibility to provide for these needs as listed above,
• Any benefit to the child of having a relationship with their parents, and other people significant to the child, where it is safe to do so and,
• Anything else that is relevant to the particular circumstances of the child.

Additionally, the new version of s 60 CC notably emphasizes the need for the courts to focus on issues of family violence in subsection 2A.

This section makes it explicit that any history of family violence or existence of a family violence order must be considered by the courts in determining the best interest of the child.

This is a great improvement from the current version that lists the presence for a family violence order or presence of family violence as an "additional consideration", that was secondary to the primary consideration of the child's meaningful relationship with their parents.

2. Changes to Equal Time and Equal Responsibility Provision

There is no longer a presumption of shared parental responsibility, as initially set out by section 61 DA of the Act. Instead, the courts will require that the parties are to consult each other when making decisions on long-term issues specified in any parenting order and make a genuine effort to come to a joint decision. However, the Act will not require any other person to verify whether the decision was reached jointly before acting upon it.

This means that third parties, such as the schools attended by the children, are not obligated to verify the joint nature of decisions, and can assume they are joint and act accordingly. This alleviates third parties from the responsibility of determining the joint nature of decisions.

Additionally, parties no longer have an obligation to consult each other on issues that are not major long-term issues, such as decisions about the child's dietary choices or clothing.

3. Changes to Variation of Final Parenting Orders

The new version of the Act now explicitly outlines the factors that the courts must consider when deciding whether to review final parenting orders.

Section 65DAAA makes it clear that the courts must not reconsider final parenting orders unless there has been a significant change of circumstances and that it is in the best interest of the child for the parenting order to be reconsidered.

4. Restriction on Communication during Family Law Proceedings

The new amended Act clearly establishes that it would be a criminal offense for a person to disclose the identity of a party, a witness, someone related or associated with a party, or a person alleged to be a concerned to a proceeding under the Act. This offence carries a potential penalty of up to one year of imprisonment. The act of identification becomes an offence if communicated to the public and is sufficient in identifying the person in relation to the proceedings. This communication can occur through various means including publication, broadcast, public exhibition, and use of the internet including online communications and through a social media service.

An identification of a person includes communication of material that is sufficient to identify the person to the general public. Examples of such information include:

• A picture, recording or physical description.
• Name or title of the person.
• Address or location of their residence or work.
• Details of their work, whether paid or voluntary.
• Relationship or other connection between the person or business.
• The person's political, philosophical or religious beliefs and,
• Any real or personal property associated with them.

It is important to note that these examples are not exhaustive. The offence has been committed when the material is sufficient in identifying a person in relation to the proceedings.

In conclusion, the amendments to the Act in 2024 represent a significant shift towards ensuring the best interests of children in protection against family violence and protecting the privacy of individuals involved. While these modifications strike a balance between safeguarding children and ensuring an ongoing meaningful relationship with their parents, these changes also reflect a growing recognition of the complex dynamics within family law cases.

These changes aim to promote a more secure environment for families navigating the legal system.

It is of the utmost importance that you have a dedicated legal team by your side to advocate for you and your children's best interests.

Our experienced law firm specializes in family matters, and we are here to support and guide you through these changes.

Please do not hesitate to contact us today to discuss your specific case, how the new reforms affect you, and how we can represent your interests effectively. Your family's well-being and legal rights are our top priority.