Family Law changes are now in place

Family Law changes 2024

As of 6 May 2024, the law relating to parenting matters has changed.

But what exactly does this mean for you? This blog will help you understand the significant changes to the Family Law Act 1975.

Family law changes - Do the new parenting laws apply to my matter?

If you have an existing final parenting order, these will not be changed.  Please continue to follow your existing orders.

If your matter will not be finalised before 6 May 2024, the changes will apply to you.

What are the major changes?

Parental responsibility

The Family Law Amendment Act 2023 has removed the presumption of equal shared parental responsibility.  This means that the Federal Circuit and Family Court of Australia no longer has to presume it is within the best interest of the child for a child’s parents to make joint decisions in relation to the major long-term issues relating to the child unless rebutted.  

It is now the default position that separated parents both retain parental responsibility, which can be exercised jointly or separately, with respect to the “major long-term issues” for children, such as the school they attend, their education, and any long-term health issues, unless specified otherwise by a Court Order. It is expected and encouraged that, where it is safe to do so, parents consult with each other before exercising their parental responsibility.

The Court still retains the power to make an order relating to the allocation of parental responsibility and will only make an order for sole parental responsibility when it is within the best interests of the children.

Consideration of time arrangements

With the removal of the presumption of equal shared parental responsibility, the Family Law Amendment Act 2023 also removes the requirement that the Court must consider making an order that the child spend equal time or significant substantial time with a parent where an order for equal shared parental responsibility has been made.

Whilst no longer a mandatory consideration, it is still open to the Court to consider equal time or significant or substantial time arrangements where it is in the best interests of the child.

Best interests of the child

The Family Law Amendment Act 2023 has reduced and simplified the factors that the Court must consider when determining whether an arrangement is within the best interests of the child.

When determining whether a parenting arrangement is within the best interests of the children, the Court must now consider the following six factors:

• 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 a child);
• Any views expressed by the child;
• The developmental, psychological, emotional and cultural needs of the child;
• 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 or cultural needs;
• 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; and
• Anything else that is relevant to the particular circumstances of the child.

When considering these six factors, the Court must also consider:

• Any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person has parental responsibility for the child); and
• Any family violence order that applies or has applied to the child or a member of the child’s family.

Where a child is of Aboriginal or Torres Strait Islander culture, the Court must also consider alongside the above factors, the child’s right to enjoy their culture, by having the support, opportunity and encouragement necessary to connect with, and explore the full extent of, their culture.

Reconsideration of final parenting orders

The Family Law Amendment Act 2023 has now codified the rules regarding whether the Court can reconsider final parenting orders as set out in the case of Rice & Asplund (1979) FLC 90-725.

Simply put, the Court must not reconsider a final parenting order unless both of the following requirements are met:

• That there has been a significant change of circumstances since the final parenting order was made; and
• That when considering all the circumstances, that reconsidering a final parenting order is within the best interests of the child.

If the above requirements are not met, the Court will not reconsider final parenting orders.

However, please note that if you and the other party agree to vary a final parenting order, there are avenues available to you.

Do you need advice?

If you wish to know how these changes to the laws relating to parenting matters affect you, please get in touch with one of our family law team today.

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