New family law changes: What you need to know

The federal government has passed a number of changes that overhauls how child custody cases are decided. See the changes.

The federal government has passed a number of changes that overhauls how cases are decided under the Family Law Act.

The current Family Law Act was instituted in 2006 after a parliamentary inquiry established by the Howard government.

The push for the inquiry was led by fathers’ rights groups who called for equal shared parental responsibility.

The changes to the Family Law Act came into effect on May 6.

Key changes are being made that will impact the Family Law Act.

What changes to the Family Law Act mean for your family

The Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023 were passed by federal parliament on 19 October 2023.

According to the Federal Circuit and Family Court of Australia, the changes include “new laws about how the courts will make parenting orders in the best interests of a child.”

One of the key changes is the removal of the “presumption of equal shared parental responsibility” which was considered in the best interest of the children.

In situations of family violence or child abuse, having both parents with equal shared parental responsibility can sometimes be dangerous.

Since there was no presumption of “equal time” in the 2006 law reform, the presumption of equal shared parental responsibility was often conflated with equal time.

Changes to parenting arrangements

The Family Law Amendment Act 2023 sets out new laws including about what the courts must consider when determining what is in the child’s best interests, and how separated parents are to make decisions about long-term issues for their children;

The new laws will make changes to the law about parenting arrangements, including introducing a shorter list of factors for the courts to consider when deciding whether parenting arrangements are in the best interests of the child/children;

Introducing new sections about decision-making about major long-term issues and removing the presumption of equal shared responsibility, noting there has never been a requirement for children to spend equal time with each parent.

The current Family Law Act was instituted in 2006.

Expanding the definitions of ‘relative’ to include indigenous concepts of family

Other changes include expanding the definitions of ‘relative’ and ‘member of the family’ to include Aboriginal and Torres Strait Islander concepts of family;

A requirement for Independent Children’s Lawyers to meet directly with children if they are over 5 years old, unless the child does not wish to meet with the Independent Children’s Lawyer or there are other exceptional circumstances;

Amended compliance and enforcement provisions for child-related orders, which impact applications such as Contravention Applications;

New powers for the courts to prevent harmful litigation, including the power to make harmful proceedings orders.

Will the new family law amendments affect current parenting orders?

According to the Federal Circuit and Family Court of Australia, those with a current proceeding in either court should carefully consider the timing of the next hearing in the matter.

If the next hearing is after May 6, and based on an assessment of the relevant application provisions, the new law will apply to the proceeding, practitioners and parties should ensure the submissions filed or made, and the orders sought, are in accordance with the new law.

The new laws will make changes to the law about parenting arrangements. Picture: Istock

What are the grounds to terminate parental rights in Australia?

The court will determine if a parent is unfit due to a history of violence or abuse, mental health issues and/or substance abuse issues.

Sole custody could be awarded if it can be demonstrated that the children will be exposed to danger with the unfit parent.

Needs of the child at the centre

Decisions about how much time a child spends with each parent depend on what is in the best interests of the individual child.

While many people believe that parents are entitled to spend equal time with their child, this has never been the case under Australian law.

The court will consider six factors to decide what parenting arrangements will be in the best interests of your child.

Decisions will be based on the best interests of the individual child. Picture: Istock

These factors include:

*the safety of the child and people who care for the child (including any history of family violence and family violence orders)

*the child’s views

*the developmental, psychological, emotional and cultural needs of the child

*the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs

*the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings), and

*anything else that is relevant to the particular circumstances of the child.

What is Section 67 of the Family Law Act?

Under section 67Z of the Family Law Act, the Court must be notified if a parenting matter involves allegations of family violence or child abuse.

Can a father get 50/50 custody in Australia?

According to Australian Family Lawyers, in deciding whether it is appropriate for a child to spend 50/50 time with both parents, the Family Law Act says that consideration should always be given to what is in the best interests of the child.

The Act sets out a number of considerations to determine what is in a child’s best interests and each family needs to be looked at individually, however, there are two “primary considerations” which are given significant weight.

These are: the benefit to a child of having a meaningful relationship with both of their parents; and the need to protect a child from physical or psychological harm.

One of the key factors in determining how much time a child spends with one parent over another, and a large reason why historically children have been ordered to live with their mothers over their fathers, has been the determination of who has been the child’s primary carer during the relationship.

The court must be notified if a parenting matter involves allegations of family violence or child abuse.

Can a mother deny a father access in Australia?

As a general rule of thumb, a parent is not allowed to practice denied access to their child in Australia.

How do these amendments impact families with children?

“They’re going to have a significant impact, particularly surrounding the removal of what’s called the ‘rebuttable presumption’ of joint responsibility,” Michael Tiyce, principal of Tiyce & Lawyers Family Law Specialists, said.

“This is the idea that in a family proceeding, a court starts with a position seeking equal responsibility and consideration of equal time between parents, now no longer the initial starting point for the court.

“Instead, courts will look at what’s in the best interests of the children, which has always been the paramount consideration in family law, but taking away the rebuttable presumption will likely mean that there will be fewer cases involving equal time arrangements, and a greater chance for the court to make orders for one parent to be responsible over the other.”

What about blind spots in legislation surrounding DV within families?

MT: “As I understand it from reading political statements leading up to the amendments coming in, there is a view that the existing legislation made it easier for violent parents to take advantage of the laws in place.

“This was due to the starting point and focus being on equal responsibility and time, which could lead to continued violent conduct towards the other parent and the child(ren). The aim with these changes is to remove that connection and control — whether that will actually be the outcome, we’re not sure, and we’ll only be able to judge after it comes into effect.

“The changes will make it potentially easier, however, for cases to be manipulated by a malicious parent that is willing to use the process against the other parent to the detriment of the children - any family lawyer can tell you that they’ve unfortunately seen many cases such as this. In families where there is no domestic violence occurring, there shouldn’t be a need to go back to the old situation where dads may only see their kids every second weekend or for half the school holidays.”

The changes will make it potentially easier, however, for cases to be manipulated by a malicious parent, an expert says.

What about Australians currently going through court proceedings?

MT: “This will impact Australians currently going through proceedings, as from May 6 judges and legal advisors will follow the new legislation, potentially impacting those who would have been on the trajectory to share parental responsibility and equal time arrangements.

What else can be done about domestic violence?

MT: “Legislation as it stands is pretty strong, however, from a sentencing perspective a lot of the horror cases involve perpetrators who are out on bail with a history of family violence. Whether that means that there needs to be judicial education to bring sentencing more in line with community expectations or changes to bail legislation, so repeat offenders aren’t given bail as easily, these are things that need to be taken into account.

“Increased government funding for counselling services, protective services and shelters for those leaving abusive relationships would go a long way as well.

“The leadup to the end of a relationship and shortly after it ends are the real high points for risk for those separating from violent partners, requiring an increase in resources during this high-risk period. There is also a need for greater funding towards responsibility courses that direct perpetrators to services that address their violence more efficiently. As it currently stands, some of these courses have wait times of over six months to get into, which is unacceptable.”