Major changes to the Family Law Act effective from May 2024
Changes to the Family Law Act came into effect on 6 May 2024, impacting the way the court considers parenting matters. These amendments streamline the legal framework, placing the welfare and best interests of the child at the forefront. The goal is to create a family law system that is easier to navigate, less intricate, and more attuned to the specific requirements of children amidst the difficulties of family separation.
What are the key changes?
The main purpose of the reform is to ensure that in family law proceedings the child's needs and best interests are given the highest consideration.
The key changes are:
- Simplifying how the Court determines what care arrangements are in the childs best interests;
- Eliminating the presumption that parents have equal shared parental responsibility;
- Making it clear that changes to final parenting orders can only be made if there has been a “significant change in circumstances”;
- Clarifying what kinds of communication are allowed during family law proceedings; and
- Clarifying the role of the Independent Childrens Lawyer.
We will discuss each change in more detail below.
Simplifying the “best interests of the child” considerations
As of 6 May 2024, changes to the Family Law Act simplified how the Court determines a childs best interests. The Act introduces six "general considerations" for a all cases, with an additional two "further considerations" specifically for Aboriginal or Torres Strait Islander children. This new approach is designed to equally weigh each factor allowing the Court to focus on the childs overall welfare and development without a predefined hierarchy, yet still permitting the courts discretion in prioritising certain factors as needed.
The reformed legislation, taking effect from May 2024, sets out a shorter list of 6 considerations as follows:
- The safety and well-being of the child and each caregiver;
- Any views expressed by the child;
- Developmental, psychological, emotional, and cultural needs of the child;
- The capacity of the caregiver to meet the childs needs;
- The importance of maintaining relationships with parents and significant others; and
- Any other relevant circumstances specific to the childs situation.
Additional considerations specific to Aboriginal and Torres Strait Islander Children
The further considerations under the Family Law Act specific to Aboriginal or Torres Strait Islander Children are:
- The childs right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture and language; and
- The likely impact of any proposed parenting order on the childs right to enjoy their Aboriginal or Torres Strait Islander culture.
Its important to note that the Court may consider these matters, even where a consent order is being sought.
Removing the presumption of "equal shared parental responsibility
Before the changes that came into effect in May 2024, there was a presumption of “shared parental responsibility”. This did not mean that parents had to provide equal care, which often led to confusion.
The updated law removes this presumption, instead urging parents to jointly make major decisions about their childs long-term care and wellbeing, unless it is deemed unsafe to do so.
The court can still decide if one parent should have sole responsibility over certain decisions, like healthcare, while sharing others such as education. However, for everyday decisions, such as what the child wears and eats, parents can act independently, simplifying co-parenting and minimising conflict.
Amending final parenting orders
Recent changes to the legislation have clarified the court's stance on accepting new applications concerning Final Parenting Orders for children. The court will now consider such applications only if there has been a “significant change in circumstances”. This principle is rooted in the belief that subjecting children to additional family law proceedings is only justifiable if there has been a considerable change since the initial orders were established. This concept, widely recognized in legal circles as the Rice v Asplund rule, has been formally incorporated into the law.
Communications during family law proceedings
The recent amendments to family law legislation have clarified the legal boundaries regarding the publishing of information on social media platforms. It is now unlawful to share any details that could potentially reveal the identities of individuals involved in family law cases. However, the legislation does delineate permissible activities, such as engaging in confidential discussions with friends or relatives if you are directly involved in the legal proceedings.
Independent Childrens Lawyers
During parenting proceedings, an Independent Children's Lawyer ("ICL") may be appointed to safeguard the childs best interests. The role of the ICL is to provide an impartial perspective about what arrangements or decisions are in the childs best interests.
ICLs could previously choose whether to meet with the child.
The recent amendments to family law now necessitate that Independent Children's Lawyers (ICLs) actively involve children in discussions, allowing them to express their views. The approach taken for these discussions is at the discretion of the ICLs. Exceptions to this requirement are made for certain circumstances, including when the child is under five years old, chooses not to engage, or if the interaction poses a potential threat to the child's well-being.
To find out how the recent changes will affect you and your children, contact Greigs Legal today to speak with one of our family lawyers.
