How do recent changes to the Family Law Act affect parenting issues?
On 6 May 2024, the Family Law Act (‘the Act’) was amended to change the way in which the Federal Circuit and Family Court (‘the Court’) approaches parenting matters. The following is a simple guide to the most important of those changes – but if you need help, please talk with a family lawyer.
Will my current parenting orders be affected?
No, the changes are not retrospective and will only apply to orders made by the Court from 6 May 2024. This means that the changes will apply to your matter if you file a new application with the Court or already have an application in the Court which has not yet been finalized (except where a final hearing has already begun).
Can I change parenting orders which have already been made?
Yes, existing parenting orders can be changed if the Court is satisfied that there has been ‘a significant change of circumstances since the final parenting order was made’ and it is ‘in the best interests of the child’ for the orders to be altered.
Nonetheless, even if it can’t be shown that there have been significant changes or that altering the orders would be in a child’s best interest, the Court will still consider amending final parenting orders if both parties agree that they should be changed.
What are the main changes to the Family Law Act?
- The ‘presumption of equal shared parental responsibility’ has been removed. This was often used to justify claims that both parents were entitled to equal time with a child.
- The ‘best interests of the child’ are now the ‘paramount consideration’ for the Court when making parenting orders. What does the Court look at to decide what is in a child’s best interests?
- What will promote the safety of the child and of each person who has the care of the child? In this context, the Court must consider any evidence of family violence (including any family violence orders that have been made), abuse, and neglect.
- Any views expressed by the child.
- Whether the child’s ‘developmental, psychological, emotional and cultural needs’ are being met.
- How much each person who has or seeks parental responsibility can meet those needs of the child.
- What ‘benefit’ the child is likely to receive from a relationship with his/her parents and other people involved in his/her care.
- ‘Anything else’ that is relevant.
- ‘Make up’ time – Often in family law cases, one parent may deprive the other of time with a child to which he/she is entitled. Under the changes to the Act, the Court can now order that the deprived parent have make-up time with the child.
- Independent children’s lawyers (ICLs) – These are lawyers who may be appointed by the Court to specifically represent children’s interests.
Under the changes to the Act, an ICL will now have to meet with the child he/she is representing and take into account the child’s views unless the child is under the age of five, does not want to meet with the ICL, or there are ‘exceptional circumstances’ which mean that the child may be at risk from meeting with the ICL.
- Family report writers – ‘Family Reports’ are often commissioned in parenting matters to provide the view of an independent third party (such as a psychologist or counsellor) about a family situation. The changes to the Act aim to regulate family report writers.
- Information sharing – The changes to the Act mean that the Court can more readily obtain relevant information from the various agencies which may be involved in a particular matter (such as other courts, the Department of Families, Fairness & Housing (Vic)).
- Cultural recognition – The amendments recognize the importance of a child maintaining a connection with his/her cultural heritage, in particular Aboriginal and Torres Strait Islander children.
If you are struggling to resolve parenting arrangements after separation and need help, contact our family lawyer for assistance.
