Family Law Changes from May 2024

The family law changes May 2024, introduced through the Family Law Amendment Act 2023 (Cth), bring significant reforms that impact both family law professionals and individuals navigating the family law system. These key legislative updates include substantial modifications to the framework for parenting orders, aiming to place greater emphasis on the best interests of the child. Additionally, the reforms impose new obligations on Independent Children’s Lawyers (ICLs), reinforcing their role in representing children more effectively during family law proceedings.

Understanding the Impact of Family Law Changes May 2024

The family law changes May 2024 mark a pivotal moment in Australia’s legal landscape, placing a renewed focus on the best interests of children, cultural inclusivity, and procedural efficiency. From redefining parenting frameworks to empowering courts with greater discretion and improving communication in proceedings, these reforms aim to create a more responsive and just family law system. As these changes come into effect, it’s essential for legal professionals, parents, and carers to stay informed and adapt to the new expectations. Understanding these amendments will ensure better outcomes for children and families navigating separation, custody, and parental responsibilities.

Schedule 1: Parenting Framework:

Amended Section 60B – Objects of Part VII:

• Simplifies Section 60B of the Family Law Act, focusing on ensuring the best interests of children, including safety, and complying with the Convention on the Rights of the Child (CRC).

Amended Section 60CC – Best Interests of the Child:

• Introduces a new list of factors for determining the best interests of a child, removing the hierarchical structure.
• Factors include promoting child safety, considering the child’s views, addressing developmental needs, assessing parental capacity, fostering relationships, and relevant circumstances.

Best Interests of Aboriginal or Torres Strait Islander Children:

• Introduces a standalone factor (Section 60CC(3)) emphasizing the importance of a child’s right to enjoy their culture, with consideration for cultural support.

Parental Responsibility:

• Retains parental responsibility for separated parents, exercisable jointly or separately, unless altered by a court order (Section 61C).

Repeal of Equal Shared Parental Responsibility:

• Removes the presumption of equal shared parental responsibility, emphasizing decisions based on the child’s best interests without a presumption of equal time arrangements.

Removal of Mandatory Consideration of Time Arrangements:

• Eliminates Section 65DAA, allowing the court discretion in considering time arrangements based on the child’s best interests.

New Guidance on Joint Decision-Making:

• Introduces Section 61CA, encouraging parents to consult on major long-term issues unless there are court orders stating otherwise.

Changes to Advisers’ Obligations:

• Amends sections 60D and 63DA outlining advisers’ obligations, aligning them with the revised best interest factors.

New Section 65DAAA – Reconsideration of Final Parenting Orders:

• Specifies conditions under which a court can reconsider final parenting orders, aligning with the Rice v Asplund common law rule.

Schedule 2: Enforcement of Child-Related Orders:

• Redrafts Division 13A, detailing consequences of non-compliance with parenting orders.
• Delegates power to registrars to issue ‘make-up time parenting orders.’

Schedule 3: Definitions of ‘Member of the Family’ and ‘Relative’:

• Expands definitions to incorporate Aboriginal and Torres Strait Islander concepts of family.

Schedule 4: Independent Children’s Lawyers and Hague Convention Proceedings:

• Requires ICLs to meet with and provide an opportunity for the child to express views.
• Expands ICL use in Hague Convention proceedings, removing the requirement for ‘exceptional circumstances.’

Schedule 5: Case Management and Procedure:

• Introduces harmful proceedings orders to prevent vexatious litigation.
• Broadens the overarching purpose of family law practice and procedure.

Schedule 6: Communication of Details of Family Law Proceedings:

• Repeals Section 121 and introduces new Part XIVB, clarifying the sharing of identifiable family law information.

Schedule 7: Family Report Writers:

• Grants the government power to regulate standards for family report writers.

Schedules 8, 9, and 10: Review of the FCFCOA, Dual Appointments, and Review of Amendments:

• Schedule 8 advances the review of the FCFCOA Act.
• Schedule 9 permits dual appointments as Judges of the FCFCOA and State Family Courts.
• Schedule 10 mandates a review of the Amendment Act three years after its commencement.

The Amendment Act received Royal Assent on 6 November 2023, with most provisions commencing on 6 May 2024.