Upcoming amendments to the Family Law Act (1975) (Parenting)

The passing of the Family Law Amendment Bill 2023 brings significant reforms to the Family Law Act 1975 (the Act) regarding parenting matters. These amendments are focused on making the family law system safer and simpler for families to navigate and ensuring that the best interests of children are placed at its centre.

Many of the changes to the Act will take effect from 6 May 2024, unless a Final Hearing has already commenced, in which case, the existing laws will remain in effect.

The most significant changes to the parenting law system include:

1. The removal of the presumption of ‘equal shared parental responsibility’ and the requirement of consideration of equal time and substantial and significant time.
2. Amendments to the factors as to what the Federal Circuit and Family Court of Australia (the Court) considers when determining the best interests of children.
3. Codification of the circumstances in which the Court will reconsider Final Parenting Orders (making these circumstances into a law of Parliament, rather than relying on case law).

There are also changes in relation to the obligations of an Independent Children’s Lawyer, the process in relation to harmful (vexatious) proceedings, the regulation of Family Report Writers (Family Consultants or Court Child Experts), the enforcement of parenting orders, and the extension of what communications are admissible in Court as evidence or protected as confidential.

This article will explore the above three (3) significant changes.

Removal of presumptions and considerations

Parental responsibility

Parental responsibility is the power to make decisions about a child’s major long-term issues relating to their welfare, care, and development (such as where they live, health, education, religion, name, etc). Each parent has parental responsibility unless the Court orders otherwise. This means that each parent can exercise parental responsibility individually or jointly.

The current law

The Act currently requires the Court to presume that it is in the child’s best interests for their parents to have ‘equal shared parental responsibility’ (ESPR). This means the parents must jointly make decisions relating to major long-term issues. The presumption does not apply in circumstances where there are reasonable grounds to believe that a parent of a child (or person with whom the child lives) has engaged in abuse of the child (or other children in the family) or family violence or if the Court is satisfied on the evidence that it is not in the best interests of the children for the presumption to apply.

The upcoming changes

The upcoming changes remove this presumption of ESPR and gives the Court the power to allocate parental responsibility – either sole parental responsibility or joint. Until the Court orders otherwise, parents (while it is safe to do so) are encouraged to consult each other about major long-term issues having regard to the children’s best interests.

Accordingly, the Court will be able to order that the parental responsibility for making major long-term decisions can be allocated in any of the following ways:

1. to one parent solely;
2. to both parents jointly; or
3. to one parent solely for particular issues, but jointly otherwise.

In making an order for parental responsibility, it is anticipated that the Court will place greater emphasis on the child’s best interests and individual needs.

Where decisions are to be made jointly, parties will be required to consult each other and make a genuine effort to come to a joint decision.

There is otherwise no requirement to consult on issues that are not major long-term issues.

‘Equal time’ and ‘Substantial and significant time’

With the removal of the presumption of ESPR also comes the removal of the requirement for the Court to consider if the child should spend ‘equal time’ or ‘substantial and significant time’ with each parent.

Substantial and significant time includes time during the week and weekends, and during the child’s routine and special occasions.

The current law

Currently, if the presumption of ESPR applies, the Court must consider whether spending equal time with each of their parents is in the child’s best interests, and whether it is reasonably practicable. If the Court answers ‘yes’ to both issues, then it must make an order for the child to spend equal time with each parent.

If the Court considers that equal time is not in the child’s best interests and/or reasonably practicable, then it must consider whether to make an order for the child to spend substantial and significant time with the non-resident parent. In determining whether to make such an order, the Court must consider whether substantial and significant time is in the child’s best interests and is reasonably practicable. If is it neither, then the Court can make orders as to the child’s living arrangements at large.

The upcoming changes

The upcoming changes remove these requirements for the Court to consider if the child should spend equal time or substantial and significant time with each parent.

Without this framework for the Court to follow when making orders as to the child’s living arrangements, the Court may make orders as it deems appropriate. In doing so, its paramount consideration will be the child’s best interests and safety.

These changes may give the Court more flexibility to make parenting arrangements with a greater focus on the child’s individual needs. Accordingly, it is anticipated that it will be emphasised that the time that the child spends with each parent is based on the best interests of the child. Rather than on the parents’ expectations as to their rights to spend time with the child.

Re-defining the ‘best interests’ factors

When deciding what is in the child’s best interests and determining the parenting order, the Court takes into account two primary considerations. The child’s right to a meaningful relationship with both parents when safe, and seven additional considerations.

Following the amendments, the Court will now focus on a shorter list of seven (7) general considerations as to what is in the child’s best interests:

1. What arrangements promote the safety of the child and the persons who care for the child;
2. Any views expressed by the child;
3. The child’s developmental, psychological, emotional and cultural needs;
4. The capacity of each person who is proposed to have parental responsibility for the child to provide for such needs;
5. The benefit of the child being able to have a relationship with their parents and other significant people, where it is safe to do so;
6. Anything else that is relevant to the child’s particular circumstances; and
7. The child has the right to enjoy their Aboriginal or Torres Strait Islander culture. This includes receiving support, opportunities, and encouragement to connect with and maintain their cultural ties. They should have a positive appreciation of their culture, country, and language. Additionally, consider the impact of any proposed parenting order on this right.

The Act will now also feature a definition of ‘member of the family’ that is inclusive of Aboriginal and Torres Strait Islander culture and traditions.

Reconsideration of Final Parenting Orders

The Court can reconsider Final Parenting Orders, meaning that it has the power to discharge, vary or suspend a parenting order.

Currently, the Court will only exercise the power if it is satisfied that there has been a substantial change in circumstances. Or that important information was not disclosed when the orders were made. This is not set out in the Act, but was set out in the key case of Rice & Asplund (1979) FLC 90-725.

The changes have now codified the approach the Courts have taken when adopting Rice & Asplund. That is, the Court must not reconsider a Final Parenting Orders unless:

1. The Court has considered that there has been a significant change in circumstances since the order was made; and
2. If the Court is satisfied that there is a significant change of circumstances. That it is also in the best interests of the child to reconsider the order.

In determining whether reconsidering the parenting order is in the best interests of the child, the Court will consider the best interests factors above and may consider:

1. The reason for the existing order and the material on which it was based;
2. Whether there is any new material available to the Court which was not available at the time the existing order was made;
3. The likelihood that the existing order will be significantly affected, if the Court reconsidered the existing order; and
4. Any potential benefits or detriments to the child resulting from the Court reconsidering the existing order.

The Court may also reconsider a parenting order if all parties to the order agree to doing so.

What these changes mean and how we can help

These significant changes to the parenting law system place children’s safety and best interests at its centre.

If you are considering commencing parenting matters, or if you have parenting matters on foot. These changes may impact the way in which the Court decides your matter. This includes the parenting arrangements that the Court will consider as being in your child’s best interests.

It is still yet to be seen how the Court will determine parenting matters from 4 May 2024. Our Family & Relationship Law Team can give you advice on current and potential parenting arrangements and issues. Please contact our office on (03) 5273 5273 to arrange an initial 30-minute consultation. Consultation are free of charge, to discuss your personal circumstances and how we may assist you.