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Understanding the Family Law Amendment Act 2023: Key Changes Effective May 6, 2024
The landscape of Family Law in Australia has undergone significant reform with the commencement of the Family Law Amendment Act 2023 on May 6, 2024. These changes, aimed at ensuring the best interests of Children and promoting efficiency in family law proceedings, bring about several crucial amendments that both legal practitioners and families need to be aware of.
- Transition from ‘Equal Shared Parental Responsibility’ to ‘Joint Decision Making’
One of the most notable changes is the repeal of the of presumption of equal shared parental responsibility. Equal shared parental responsibility requires that parents make joint decisions in relation to major long-term issues (such as education, religious and cultural upbringing, health, name and significant changes to living arrangements).
Previously under Act there was a presumption that parents equally shared Parental Responsibility, unless the presumption is rebutted (repealed s 61DA Family Law Act (Cth) 1975).
Under the amendments, the Court can no longer presume that equal shared parental responsibility is in the best interests the Child. Instead, whether equal shared parental responsibility applies, is decided according to the Child’s best interest.
Parenting Orders may still deal with the allocation of responsibility for making decisions about major long term issues in relation to the Child (section 64B(3)). The amendments clarify that that if a ‘joint decision making’ order is made, it requires the parties to consult and make a genuine effort to agree as to long term decisions, however, there is no requirement that the decision be made jointly (s 61DAA).
Under the new section 61CA, parents are now generally encouraged to consult each other about major long‑term issues in relation to the Child and in doing so are required to have regard to the best interests of the Child as the paramount consideration.
- Introduction of “Best Interests” Framework
The Amendment Act introduces a revamped “best interests” framework which provides that when determining the parenting arrangement in the best interest of the Child, the Court now considers the following factors:
- Promoting the safety of the Child and all caregivers, including protection from family violence, abuse, neglect, or other harm.
- views expressed by the Child.
- developmental, psychological, emotional, and cultural needs of the Child.
- capacity of each caregiver to meet the Child’s developmental, psychological, emotional, and cultural needs.
- the benefit to the Child of maintaining relationships with parents and other significant individuals, provided it is safe to do so.
- Taking into consideration any other relevant circumstances specific to the Child’s situation.
The amended framework removes the previous primary and additional consideration’s structure, which gave paramountcy to the Children benefiting from a meaningful relationship with their parents and being protected from harm. In the amended framework, the concept of a “meaningful relationship” no longer holds prominence, while a broader emphasis on the “promotion of safety” takes precedence over the need to protect the Child from physical or psychological harm. These amendments are intended to offer a more flexible approach tailored to each individual case.
- Codification of Rice & Asplund
The Amendment Act codifies the principles established in the landmark case Rice & Asplund, providing clarity and consistency in relocation matters. Under the amendments when a final parenting Order is established, the new section 65DAAA stipulates that the court cannot review the Order unless two conditions are met:
- The Court considers whether there has been a significant change in circumstances since the final order was issued; and
- The Court is satisfied that it is in the best interest of the Child that the orders be reconsidered.
- Overhaul of Independent Children’s Lawyer (ICL) Provisions
The amendments bring about a revamp of the Independent Children’s Lawyer (ICL) provisions, including the introduction of a mandatory meeting with Children aged 5 years and over. This ensures that the Child’s voice is heard and considered in proceedings that directly affect them.
- Introduction of “Harmful Proceedings Order”
In an effort to simplify proceedings and bolster enforcement, the Amendment Act introduces streamlined contravention provisions and penalties. Furthermore, it incorporates a new mechanism termed “harmful proceedings order” within the vexatious litigant provisions to dissuade individuals from initiating litigation that could potentially harm or distress the Child or other involved parties. Schedule 5 of the Family Law Act encompasses two new Parts:
- Part 1 introduces “harmful proceedings Orders” aimed at preventing vexatious litigants from submitting and serving new applications without prior permission from the court.
- Part 2 extends the overarching purpose of Family Law practice and procedure to all proceedings under the Family Law Act.
Under the framework of harmful proceedings Orders, courts are empowered to issue such Orders, either at their own discretion or upon application by a party to the proceedings, at any point during the ongoing proceedings. In making such an Order the Court must be satisfied that there are reasonable grounds indicating that further proceedings could prove harmful to the respondent. Harm encompassed within these Orders may include psychological distress, oppression, significant mental strain, behaviour adversely impacting the other party’s ability to care for a Child, or financial harm.
- Revamp of Section 121 Publication Restrictions
Lastly, the Act brings about a revamp of section 121 publication restrictions, strengthening protections for the privacy and well-being of individuals involved in Family Law proceedings. These provisions serve to safeguard sensitive information and prevent its misuse or publication, ensuring the integrity of the legal process.
The Family Law Amendment Act 2023 heralds a new era of Family Law in Australia, marked by a renewed focus on the best interests of Children, efficiency in proceedings, and enhanced protections for all parties involved. By understanding and adapting to these key changes, legal practitioners can better serve their clients, while families can navigate the complexities of the legal system with confidence and clarity.
Family law is a highly emotional and complex area of law where families navigate through parenting, property and relationships disputes. During these times, you need a competent and experienced family law lawyers who understands what you are going through, thinks carefully and proactively on your behalf and knows how to represent you for the best possible outcome.
If you want to understand your rights, contact Salerno Law and discover why we are Gold Coast’s best family lawyers.
Author Aspen Roggeveen
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