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. 

—————-

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.

 —————

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.