The Family Law Act has changed. What does this mean?

The Family Law Amendment Act 2023 took effect on 6 May 2024.  It makes a number of changes to the Family Law Act that will change the way we talk about and think about resolving family disputes.

Every time the Family Law Act is changed, everyone involved with the Family Law system, including lawyers and Family Dispute Resolution Practitioners, have to try to work out how those changes might affect the people who come to the system for help in resolving their conflicts.  In reality, it’s never possible to be sure what effect the changes will have until the Courts start applying the new version of the Act to the cases that come before it. 

The Government seems to be trying to resolve some of the uncertainty and confusion created by the last set of major changes to the Family Law Act.  Unfortunately, at least in the short term, that means we have to deal with the additional uncertainty caused by the latest changes.   Hopefully these changes will lead to better outcomes in the long run.

The previous version of the Family Law Act said that there were two primary considerations for the Court when deciding about arrangements for children:

 (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

 (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This was followed by a long list of other factors that the Court had to consider.

The government received feedback from a number of people and organisations who said that in practice, the long list of considerations was confusing and it was causing family law dipsutes to take longer and cost more because parties and their lawyers felt that they had to address every single factor listed in section 60CC.  It did not help that even though the list was long, the last factor listed was “any other fact or circumstance that the court thinks is relevant”, meaning even if you addressed every factor that was listed, you still might have missed something.

The amended version of section 60CC reduces the list to six core things that the Court must consider, which are:

(a)   what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child

(b)   Any views expressed by the child

(c)   the developmental, psychological, emotional and cultural needs of the child;

(d)   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;

(e)  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;  

(f)    anything else that is relevant to the particular circumstances of the child.

There are some additional considerations when the case involves Aboriginal and Torres Strait Islander children.  In those cases the court must consider the following matters:

(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

 (i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

 (ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

 (iii) to develop a positive appreciation of that culture; and

(b) the likely impact any proposed parenting order will have on that right. 

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There changes are likely to have a number of positive effects.  The problem with listing “a meaningful relationship with both of the child's parents” as a primary consideration was that it tended to place the parents front and centre in discussions, taking focus away from the best interests of the child.   Listing relationships with parents ahead of the child’s safety, even though both were described as “primary considerations”, also sent a poor message.

It has been clear for a long time that decisions should be based on what is best for children, not on any beliefs the parents may have about their “rights”.  The Act was amended to add sub-section 60CC(2A) which said that the child’s safety was to be given more weight than the benefits of relationships with both parents, but this did not go far enough to address the problem.  I am therefore very happy to see that the latest changes remove any reference to “primary considerations”, and that the child’s safety is listed as the first of the six core considerations for the Court.

The new version of the Act still recognises that there is a benefit to having a relationship with both parents, but it makes it clear that the Court is only required to consider this where it is safe to do so.    

The amended version of the Act refers to safety a number of times, and it is helpful that safety is defined to include safety from all types of harm, including psychological harm and neglect.   I hope that this will encourage everyone involved in these disputes, including parents. to think very carefully about what their children need, especially while their children are adjusting to a major change in their lives because of the separation.

The list of considerations in the previous version of the Act referred a few times to the past actions of parents.  This was unhelpful, as the last thing that separating couples need is to get into a slanging match about which one of them has been the worse parent during the relationship.  The changes require the Court to consider instead “the capacity of each person who will have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs”.  This is a positive change as it helps everyone involved to focus on the needs of the children now, and encourages parents to step up to meet those needs.

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Overall, I believe that the changes to the Family Law Act may cause some confusion and uncertainty in the short term but in the long run the changes will be helpful and they will help families to focus on the needs and safety of their children while they go through a deeply difficult time in their lives.

You can read more about the changes on the Court’s website at https://www.fcfcoa.gov.au/news-and-media-centre/fla2023. If you need legal advice about how the changes might affect your situation, please talk to your lawyer.

My partner and I are separating. What’s next?

The decision to separate is never an easy one. You went into the relationship expecting it to last. You may have children. You may have bought a house together. But, at some point, you realised that the relationship could not continue.

Everyone who comes to the end of a relationship has a unique story.  Sometimes separation is the best decision you can make.  Sometimes it’s the only option.  Sometimes it happens because of someone else’s decision.  The one thing that is always true is that separation is a huge change in your life and adjusting to it can be very hard. 

If you decided to leave, you may feel a mix of emotions, including relief, excitement, doubt and guilt all at once.  If the separation was not your idea, you may experience shock, surprise, resentment, anger or any combination of a hundred other emotions.

In the middle of this huge upheaval, you somehow have to work out what arrangements to put in place for your children and how to divide up the assets that you and your partner own together.  It is a very difficult task and it may take some time to sort everything out.

It will never be easy, but there are a few things that might help you to get through this challenging time.

It will be very important to look after your mental and emotional health. You will need support from the people in your life, whether they are friends or family. You might also need more support than your current network can provide. There are many organisations that provide counselling for people who are going through separation. If you need help to find a counsellor, you can contact the Family Relationship Advice Line on 1800 050 321.

Your children may also need this type of support. It will be important to liaise with their schools and any other support networks throughout the separation, and to seek additional supports for them if they are struggling to adjust to the changes that separation has brought to their lives.

You may not be ready to think about long term arrangements for your children, or how to divide up your assets, immediately. It is best to carefully consider what is best for you and your children before negotiating an agreement.

My job is to help couples and families to navigate these challenges and get to a point where it becomes easier to move forward.  The Family Dispute Resolution process can be a useful tool for helping you and your partner to reach an agreement, but how do you know whether the time is right for engaging in that process, and how can you prepare for it?  Here’s a few things that may help you with that.

1.  Make a list of what your children will need to continue to thrive despite the change in their living situation.  Often, that list will include:

a.      A stable living situation

b.     An ongoing relationship with both parents, and with their siblings

c.      Continuity in their education

d.     Access to their current support systems, including relatives, friend groups, sporting clubs, any religious organisations or other community groups they are a part of.

e.      Additional supports, such as school counsellors, doctors, psychologists or anyone else who can help them to process the changes in their lives and the feelings that may come along with that

2.  Work out how it might be possible to achieve those goals

3.  Be prepared for the possibility that your partner may have a different idea for how to achieve those things, and be prepared to consider whether your partner’s suggestions might also be a way of achieving your common goals

4.  Speak to a lawyer to get advice on what might happen if you and your partner can’t reach an agreement.  It will be helpful to know what the alternatives are.  If you can’t reach an agreement, you might need to take the dispute to Court.  Before you make that choice, it would be helpful to know what a Court might decide, how long it will take before a Court makes a decision, and how much it might cost to go through the process.

5.  Make a list of all of the assets owned by you, by your partner, or by the two of you together.  This might include houses and other properties, cars, bank accounts, any shares and investments, jewellery, and even items of furniture if those are particularly important to you. 

 6.  Don’t forget to include superannuation.  It may not seem important yet, but it has to be a part of your long term plans.

 7.  Work out what each asset is worth.  For major assets, such as real estate, consider whether you need to arrange a valuation.  For things like bank accounts and superannuation, make sure you have statements showing the current values.

 8.  Make a list of all debts and liabilities.  This might include mortgages personal loans, credit cards, and tax liabilities.  Make sure you have statements showing what is owed.

 9.  Think about what you will need moving forward, including where you will live, what you will do for work, whether you might need to retrain or update your qualifications, and how your work can be consistent with spending time with your children.

10. Speak to your accountant about your financial position if you are unsure of what things might be worth or whether there are any tax liabilities that you need to know about.  For example, if you have an investment property that has been rented out, there might be Capital Gains Tax to consider.

11. Speak to a lawyer about how a Court might divide the property up if you and your partner cannot reach an agreement, and how much of the property might be left after legal fees have been paid.

Once you understand the position, your goals, and how best to get there, and once you’re ready to start discussing these things, then it’s time to look for a family dispute resolution practitioner. Your lawyer might be able to recommend someone they have worked with before, or someone who has a good reputation in this field. If you’re reading this, then I need to say that I hope you will consider contacting me to find out if I might be the right person to help you and your partner reach an agreement.

When speaking to the FDRP, think about whether they seem like a good listener, who will approach your situation with empathy, ask good questions, and help you and your partner to get to an agreement that you can both be satisfied with.  If you do not feel comfortable with the FDRP you are speaking to, it’s better to start again with someone else than to go through this process with someone you do not feel comfortable with.   

You will probably haver a lot of questions at a time like this.   If any of those questions are about how the dispute resolution process works or how to get the most out of the process, you can ring me for a free initial chat at any time on 0417 017 053.