The new overhaul of Family Law in Australia, how will it affect you?

On 6 May 2024, it was announced that a number of major changes will be introduced in Australia that will dramatically affect family law. These changes mark a significant ‘overhaul’ of the family law system and will have wide-ranging implications for all those who are involved with it. These changes were passed under the Family Law Amendment Act 2023 to better protect children involved in family law disputes. At the same time the Family Law Amendment (Information sharing) Act was passed.

The Act includes some of the following recommendations and changes to the family law system:

Information Sharing

This change will see the increase of information sharing to give effect to the information sharing between family law, family violence and child protection systems the court will also have the further ability to obtain information from police and firearms agencies and the Australian Federal Police. The type of information is broadened as well including information about any abuse or neglect a party to the proceeding may have been exposed to or has engage in to the extent it may affect a child of the proceedings.

Best interests of the child

These changes were primarily made to ensure that the child’s best interests are always at the forefront of all parenting decisions made. While this is already a paramount consideration, the new amendments make a shorter list of areas that the court must consider some of these are:

• protection from violence, abuse, neglect,

• consideration of the child’s expressed views,

• emotional, developmental, psychological, and cultural needs,

• the capacity of each person with parental responsibility to provide for the child’s needs,

• the benefit to the child of having a relationship with each parent and the other significant people in the child’s life, when it is safe to do so,

• any other factor that is relevant to the circumstances of the child.

• Repeal of presumption of equal shared parental responsibility

It has previously been accepted that parents will have equal and shared decision-making responsibility. This required that parents talk to each other and come to an agreement before making major decisions that affect a child. This presumption has now been removed. The court will now be obliged to consider all relevant factors when determining which parent should have parental responsibility, or whether it should be shared. Given this, the best interests of the child will now be determinative factor. Accordingly, the determination of who is to be responsible for the decisions of the child will now be considered on a case by case basis.

There has not been a requirement that parents have equal shared time (though many were under this assumption) but additionally, the notion of ‘significant and substantial’ time will no longer be a reference point. However, this does not mean that the courts will still not favour children having a meaningful relationship with both parents.

More power for registrars to make an order for lost time

Previously, when a parent lost time with their child due to the actions of another parent, the process to regain this time has been somewhat convoluted. From 6 May 2024, family court registrars can issue orders to regain lost time caused by another parent. While the process for how this will play out is currently uncertain, it will likely make a huge difference to previously embittered parents.

Definitions of member of the family

The definition of ‘member of a family’ and relative have now been expanded to include Aboriginal and Torres Strait Islander concepts of family.

Increased role of Independent Children’s Lawyers (ICL’s)

Under the new changes, ICL’s will now be required to meet with the child and provide them with an opportunity to express a view, unless the child is under the age of five or they do not want to meet with them. Furthermore, using an ICL will now become more frequent in cross- jurisdictional cases involving the Hague Convention on the Civil Aspects of International Child Abduction. This Convention is relied upon to allow the safe return of a child who is abducted to an agreement country by another parent.  

Harmful Litigation

Unfortunately there are times when litigation is designed to extend domestic violence. The court will now be empowered to issue a new type of order – the ‘harmful proceedings orders’ designed to prevent harmful litigation.

Clarification on amending final parent orders

Historically, there has always been a high threshold as to whether Final Orders are to be reconsidered. The new amendments offer further clarity over when a Final Parenting Order can be reconsidered. The Judge must now consider if there has been a significant change in the circumstances of the child in comparison to when the Final Orders were made. It also requires a consideration of the “best interests” of the children.

If you are experiencing or contemplating separation at Voice Lawyers we suggest you get advice early, every family and their situation is different and tailored advice is important please contract us by booking an early strategy session through our website; or if you would like a second opinion come and speak with us contact us call 02 9261 1954.

By Kayte Lewis and Jake Fitzpatrick