The Family Law Amendment Act 2023 (Cth) (the Amendment Act) introduces several modifications impacting family law practitioners and individuals engaged with the family law system. Notable alterations involve substantial changes to the procedures for issuing parenting orders and the introduction of additional responsibilities outlined in legislation for Independent Children’s Lawyers.
Having received Royal Assent on November 6, 2023, the Amendment Act is set to take effect predominantly six months later, on May 6, 2024. It’s essential for professionals within the family law system to note that numerous significant adjustments will be applicable to both new and existing cases starting from the commencement date, unless a final hearing has already commenced.
This article gives a brief update on the changes to the parenting framework.
SCHEDULE 1: PARENTING FRAMEWORK
Amended section 60B – objects of part VII
Section 60B of the Family Law Act 1975 (Cth) (the Family Law Act) has been streamlined to emphasize that the objectives of Part VII (Children) are to:
- Ensure the fulfillment of the best interests of children, including their safety.
- Implement the principles outlined in the Convention on the Rights of the Child (CRC).
Amended Section 60CC –Best Interests of the Child
The existing Section 60CA of the Family Law Act underscores that, when deciding on a specific parenting order concerning a child, the court must prioritize the best interests of the child.
The Amendment Act introduces a fresh set of factors for the court’s consideration in determining the best interests of a child.
These factors, found in subsection 60CC(2), mirror the core list of six factors recommended by the Australian Law Reform Commission in its 2019 report on the family law system.
The list is now non-hierarchical, eliminating the previous distinction between ‘primary’ and ‘additional’ considerations. This change allows the court flexibility to assess the unique circumstances of each parenting matter, always keeping the best interests of the child at the forefront of decision-making.
The court, when deciding the parenting arrangement in the best interest of the child, must now consider the factors in 60CC(2):
- a) Measures promoting the safety of the child and each person with care of the child.
- b) Expressions of the child’s views.
- c) Developmental, psychological, emotional, and cultural needs of the child.
- d) The capacity of individuals with parental responsibility to meet the child’s needs.
- e) The benefit of the child having a relationship with parents and other significant individuals, where safe.
- f) Any other relevant circumstances of the child.
Additionally, new subsection 60CC(2A) underscores the importance of family violence orders and past incidents of family violence, abuse, and neglect in shaping future parenting arrangements.
Best Interests of Aboriginal or Torres Strait Islander Children
Subsection 60CC(3) introduces a standalone factor requiring the court to consider the rights of Aboriginal or Torres Strait Islander children to embrace their culture, along with the support they will receive to connect with that culture. This consideration operates in addition to the general considerations at subsection 60CC(2).
Parental Responsibility
The Amendment Act maintains the current provision in the Family Law Act that grants separated parents parental responsibility, either jointly or separately, unless modified by a court order (section 61C).
Repeal of the Presumption of Equal Shared Parental Responsibility
The repealed presumption of equal shared parental responsibility (previously in section 61DA) clarified the joint decision-making on major long-term issues. The removal of this presumption means the court no longer assumes it’s in the best interests of the child for parents to jointly make decisions, unless rebutted. The focus is now on deciding parental responsibility based on the child’s best interests and the specific case circumstances.
Elimination of Mandatory Consideration of Certain Time Arrangements
Section 65DAA has been removed, allowing the court the discretion to consider equal time or substantial time arrangements in line with the child’s best interests.
New Guidance on Joint Decision-Making
The Amendment Act provides additional guidance on joint decision-making in the absence of the presumption. New section 61CA encourages parents to consult on major long-term issues unless court orders state otherwise. New subsection 61D(3) clarifies that courts can still make orders on the allocation of parental responsibility, using the term ‘joint decision-making on major long-term issues.’ Section 61DAA outlines the effect of an order for joint decision-making, requiring parties to consult and make a genuine effort to reach a joint decision.
Changes to Advisers’ Obligations
Amendments to sections 60D and 63DA outline advisers’ obligations when working on parenting arrangements. Section 60D now emphasizes advising clients of the paramountcy of the child’s best interests and encouraging them to consider factors in subsections 60CC(2) and (3).
Section 63DA adjustments remove the obligation to advise on equal time arrangements, aligning with the repeal of section 65DAA.
New Section 65DAAA – Reconsideration of Final Parenting Orders
Section 65DAAA codifies the common law rule in Rice v Asplund (1979), clarifying when a court can reconsider a final parenting order. The court must not reconsider the order unless there has been a significant change of circumstances and it is in the best interests of the child.
Commencement and Application Information
Schedule 1 (Parenting Framework) takes effect on May 6, 2024. Parts 1 and 2 apply to proceedings initiated on or after this date and those already underway, except for cases where the final hearing has started. Section 61CA and Part 3 apply from May 6, 2024.
If you need legal advice regarding changes to the family law amendment act or a new enquiry regarding a family law matter, please contact our office on (07) 3252 0011 to book an appointment with one of our friendly family lawyers today.