In the ever-evolving landscape of family law, the Family Law Amendment Bill 2023 (FLAB) emerges as a significant legal transformation & these changes are expected to take effect in May 2024.

In this article, we delve into a few of the key amendments outlined in the bill to help our current and future clients identify how these changes may impact upon them.

For all parenting cases currently on foot before the Federal Circuit and Family Court of Australia (FCFCOA), it is possible that those matters may be decided under the new regime (if final hearing occurs after May 2024). For those parenting cases yet to be filed in the FCFCOA, it is almost certain those will be decided post-May 2024 so the new FLAB will be highly relevant.

Emphasis on Shared Parental Responsibility

One of the significant changes brought about by the FLAB is the repeal of the presumption of equal shared parental responsibility (ESPR) to make decisions about major long-term issues for the child(ren). This amendment acknowledges the complexities of family dynamics and aims to prevent misinterpretations that might lead to unrealistic expectations of equal shared time with children.

Major long-term issues which are the subject of a parental responsibility order include (but are not limited to) where a child lives, where they go to school, their religion, their medical treatment and their name.

Under the current law, there is an assumption that parents’ ought to have shared parental responsibility. This presumption can be rebutted but it is expected that shared parental responsibility should be ordered unless there is some compelling reason not to. Further, currently is an  order for ESPR was made, the Court had to consider whether to make an order for equal time. The combination of provisions in the current Family Law Act (the Act) created confusion among the general public as to their rights as parents.

In accordance with the FLAB, and in the absence of a presumption there will now be far more discretion for the Court to make decisions based on the best interests of the child(ren) involved. The Court may order ESPR, sole parental responsibility, or they may order split decision making (for example, one parent makes decisions about medical issues alone and all other decisions are shared).

The removal of the presumption sets the stage for a more tailored approach to parenting arrangements, focusing on the unique needs of each child.

The FLAB also reiterates that parents are not required to consult on matters which are not major, long-term issues, when a child is spending time with that parent.

Refining the Best Interests Framework

The FLAB refines and simplifies the ‘best interests’ factors outlined in the Act.

Currently, the Act contains a long list of factors for the Court to take into account when determining a child’s best interests with a couple of “primary considerations” and 14 “additional considerations”.

The FLAB aims to reduce complexity and enhance the individual needs of children. Factors such as the safety of the child, any history of violence, the child’s views, developmental needs, and cultural rights are considered, with a standalone factor introduced for Aboriginal and Torres Strait Islander children.

The FLAB places a very strong emphasis on the safety of the child(ren), when determining what orders would be in their best interests, in a much more deliberate way than the current Act does. This is likely to impact upon negotiated and Court outcomes alike.

Empowering Courts for Effective Case Management

To protect parties and their children from the adverse effects of prolonged litigation, the FLAB introduces new case management provisions. These include powers for the courts to restrain repeated filing of new applications without leave of the Court. These are called ‘harmful proceedings orders’.

Amplifying the Voice of Children

Recognising the importance of children’s perspectives in family law proceedings, the FLAB codifies a requirement for Independent Children’s Lawyers to meet with and seek the views of children. This step aims to enhance the representation of children’s voices.

Regulating Family Report Writers

The FLAB introduces regulatory measures for family report writers, establishing a national accreditation scheme and setting standards for their qualifications and conduct. This move ensures a more consistent and professional approach to family assessments, offering courts valuable insights into the dynamics of separated families.

As we navigate the intricacies of the FLAB, we will continue to update our clients on how the Courts are interpreting the changes to the Act.

It remains to be seen how the amendments will impact upon decision making and negotiated outcomes. These amendments will take time to settle in and whilst the amendments appear positive on paper – we expect that in reality it may make it more difficult for the non-primary parent to achieve shared parental responsibility, especially if the two parents have any level of conflict or differing parenting styles.