This week, on 6 May 2024, the “Family Law Amendment Act 2023 (Cth)(the Amendment Act)” commenced containing a number of changes that effect the framework for making Parenting Orders and implemented new obligations in the legislation for Independent Childrens Lawyers. These amendments apply to all new and also to all existing matters from Monday except matters that were listed for a final Hearing this week.
The intention of the amendments to the Act are to simplify the objectives in relation to parenting matters and to overall ensure that the best interests of children are met by ensuring that their safety is prioritised and effect is given to the convention on the rights of the child.
There is a new list of factors that the Court must consider when determining the best interests of a child and the six (6) core factors are set out in Section 60CC(2). The list is non-hierarchical and there is no longer a distinction between “primary” and “additional” considerations. The removal of the hierarchy provides the Court with discretion to consider each individual parenting case’s unique circumstances, in a way that places the best interests of the child who is at the centre of the Proceedings at the forefront of the decisions that are made by the Court.
These factors are:-
- 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 the 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 and cultural needs;
- The benefit of 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 relevant to the particular circumstances of the child.
In addition, the amendments to the Act highlight the relevance of Family Violence Orders including historical Family Violence Orders and all past Family Violence abuse and neglect.
Repeal of the Presumption of Equal Shared Parental Responsibility
In relation to parental responsibility, the amendments have repealed the presumption of equal shared parental responsibility, which relates to the joint making of major long term decisions (not a right to equal time arrangements). Whilst the removal of the presumption means the Court no longer has to presume it is in the best interests of the child for the parents to be required to make joint decisions in relation to major long term issues, unless rebutted, it does not change the current position in the Family Law Act that separated parents retain parental responsibility but clarifies that decisions should be based on what is in the best interests of the child and the particular circumstances of the case.
Removal of Mandatory Consideration of Certain Time Arrangements
- Section 65DAA has been removed in the Act, which was the provision that required the Court to consider making an Order that children spend equal time, or substantial and significant time with each parent, if an Order for equal shared care parental responsibility was made. Whilst this provision has been removed, it remains open for the Court to consider equal time arrangements or arrangements that give substantial or significant time with each parent in accordance with the child’s best interests.
- New Sections have been inserted into the Act such as Section 61CA that provides that unless there are Court Orders stating otherwise and it is safe to do so, parents are encouraged to consult one another about major long term issues in relation to the child’s best interest. This Section acts as a signal to parents about what to do if there are no Court Orders in place.
- New terminology has been adopted by the Act in relation to decision making and is now referred to “joint decision making on major long term issues”.
- There are also new obligations imposed on Solicitors, who must advise their clients that the best interests of the child have always been and remain the paramount consideration for the Court and further, encourage parents to act in children’s best interests by applying the considerations referred to above.
Section 65DAAA – Reconsideration of Final Parenting Orders
New Section 65DAAA sets out that when a final Parenting Order is sought to be reconsidered by a Court by one of the parties, the law in the case of Rice v Asplund [1979] is now codified. Where there is a final Parenting Order in place, this new Section makes it clear that the Court must not reconsider the final Parenting Order unless:-
- The Court has considered whether there has been a significant change of circumstances since that Parenting Order was made; and
- The Court is satisfied that it is in the best interests of the children for the final Parenting Orders to be reconsidered.
Independent Childrens Lawyer
Whilst there are many other changes to the Amendment Act, one of the other significant changes that will impact parents moving forward in the Federal Circuit and Family Court of Australia, is the amendment to the provisions about Independent Children’s Lawyers (ICLs) including requirements for ICLs to meet with children and give the child(ren) an opportunity to express a view and expanding the use of ICLs in cases commenced under the 1980 Hague Convention on the civil aspects of international child abduction. Engagement with ICLs will occur in every appropriate case and these amendments will better facilitate the participation of children in Family Law Proceedings.
The amendments do not remove an ICL’s discretion in relation to when, how often and how meetings with the child take place and those aspects remain discretionary for ICLs. An exception to this requirement, is that ICL’s will not be required to meet with the child and perform a duty in respect of the child if they are under five (5) years of age or if the child expresses a view that they do not want to meet with the ICL. ICLs are not required to meet with a child in circumstances where it would expose the child to risk of physical or psychological harm that cannot be safely managed or that would have significant adverse effect on the wellbeing of the child.
Notwithstanding these amendments to the legislation and the fact that how they are implemented by the FCCOA remains to be seen, it is clear from the Explanatory Memorandum and reading speeches presented to Government and Parliament regarding the Amendment Act that there has not been a clear intention to abandon the previous emphasis on the importance of retaining the involvement of both parents in children’s matters after a relationship breakdown, where it is safe to do so. How this is implemented by the Courts will be an interesting journey for Family Lawyers and we will continue to keep you updated via our blogs in this respect.
Pamela Wood
9 May 2024