??The August 2024 Briefing??

Updates To Family Law Act 1975 as of 6 May 2024

The Family Law Act 1975 was significantly changed on 6 May 2024, with the biggest impact being to parenting matters.

The changes apply to all matters before the court, even if they were commenced prior to 6 May 2024 (except where a final hearing has already begun, and some apply even in that case).

The biggest changes are:

?There is no longer a presumption of “equal shared parental responsibility” for children, which previously applied if there was no abuse or family violence.

Instead, there are now sections which provide for the court to make “joint decision-making” orders (the new s61DAA) and to clarify (the new s61DAB) that joint decision-making does not require consultation on “issues that are not major long-term issues” (unless the court specifically orders otherwise).

?There is no longer a requirement for a court to consider whether equal time is appropriate. Previously, where there was an order for equal shared parental responsibility, the court was then required to first consider if equal time was appropriate; and if that was not appropriate, it was to consider “significant and substantial time”. The meaning of “significant and substantial time” was set out in the Act (to include weekdays as well as weekends and holidays, ordinary daily routine as well as special days). This is all now gone.

It is important to note that in the explanatory memorandum accompanying the changes, it is specified that “the court can continue to make orders for equal time or substantial and significant time in the event it determines that arrangement is in the best interests of the child” (paragraph 91). The key difference is “there is no requirement to consider these arrangements if they would not be suitable”. Consideration of such arrangements is now discretionary, rather than compulsory.

??The factors to be considered when deciding on “the best interests of the child” have been streamlined, with protection from exposure to risk of harm for both the child and the caring parent prioritised. S60CC used to have 13 factors the court was to consider; that is now six. This does not render the previous considerations or prior case law on this topic as irrelevant, due to the sixth factor s60CC(2)(f) specifying that the court can consider “anything else that is relevant to the particular circumstances of the child”. However, the emphasis has significantly changed.

The other five new factors are (and in this order):

? What arrangements would promote the safety of the child and each person who has care of 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 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.

It is important to note that the benefit to the child of a relationship with their parents is only the fifth factor, and subject to the safety requirement.

?New harmful proceedings orders regarding the impact of proceedings on the victim. Under the new s102QAC there are now new harmful proceedings orders, which are in addition to the existing vexatious proceedings orders (which continue under s102QB). The difference is that vexatious proceedings orders require an assessment of the purpose of the person filing those proceedings (ie they are doing it on an improper basis). In contrast, the new harmful proceedings orders are determined on the basis of the impact on the victim.

? Rice v Asplund now codified. The Act now specifies (s65DAAA) under what circumstances final parenting orders may be reconsidered – essentially codifying the existing case law (Rice v Asplund). The test to be applied is whether there has been a significant change in circumstances and it is to the benefit of the child to reopen proceedings.

? New ATSI provisions to support connections with family and culture. Other provisions have been introduced which apply to Aboriginal or Torres Strait Island children, to support connections with family and culture (including requiring the court to consider those connections when determining their best interests – the new s60CC(3)).

?Independent Childrens Lawyers are now required to meet directly with children if they are over 5 years old (with some exceptions).

It remains to be seen how these changes will work out in practice.

The primary purpose given by the parliament for the amendments was to protect victims of family violence, and it is likely the court will approach matters with a heightened focus on achieving this aim. We are hopeful this will result in better protection for victims of family violence, particularly children. That said, it should be noted that the previous version of the Act also emphasised that protecting victims of family violence was to be the overriding consideration for the Court, so whether these amendments will actually result in a substantial improvement on that score, or whether outcomes will remain similar, or whether there will instead be other results that the parliament very much did not intend, will become more clear over the coming months.

One thing that does seem likely is that the revisions to the Act will advantage parties who are represented by experienced family lawyers. To a significant extent this is because the process of “simplifying” those sections of the Act that have now been “streamlined” has actually been to remove guidance that previously existed in the legislation. It will be much more difficult for unrepresented parties, for example, to identify those factors which actually still apply (as the Attorney General’s Department clarified they do in explanatory memoranda) but which are no longer expressly set out in the Act. What that means is that navigating the Act and the law around it may well now be even harder for litigants to navigate without professional assistance.