PURPOSE

Changes to the Family Law Act take effect on 6 May 2024. The changes emphasize children’s safety. Where it is unsafe for a child to spend time with a parent, that safety can override the child maintaining a meaningful relationship with that parent. The changes are also designed to simplify parenting cases. Removing ‘checklists’ of what is relevant is meant to allow for a more holistic assessment. However, just because a criteria is removed, do not necessarily mean it is not relevant anymore. For example, a meaningful relationship with a parent and relationships with grandparents are likely to still important, despite these references being removed from the Act. With less guidance on what is relevant, time will tell how lawyers, parents and the Courts will determine a child’s best interests.

 

MAJOR LONG-TERM DECISION ABOUT CHILDREN

Before 6 May 2024, the Family Law Act presumed that parents equally shared “parental responsibility”. This meant that parents had an equal say in important decisions about a child’s upbringing (such as education, medical treatment and religion). However, some parents (particularly those who had not received legal advice) mistook this to mean that parents should get equal time with a child, which was not the case. So the words “parental responsibility” have been reframed to “major long term issues”.

Under the old law, it was presumed that these decisions would be equally shared, unless there was a history of family violence. Under the new laws, there is no longer a presumption that these decisions will be equally shared, meaning that Parent A will now need to establish why they should have a say, rather than Parent B needing to prove why they should not.

 

EQUAL TIME?

Before 6 May 2024, the Family Law Act set out a pathway to decide where a child will live and how much time they will spend with each parent. Under this old pathway, if parental responsibility was equally shared, the Court had to first consider if equal time was appropriate. If it was not, the Court then considered if “substantial and significant” time could occur and if that was practical. The references to equal time and substantial and significant time are all removed, so we must look more broadly at what the living arrangements will be.

 

INDEPENDENT CHILDREN’SLAWYERS

Before 6 May 2024, the Court could appoint an Independent Children’s Lawyer (ICL) in appropriate cases. The ICL would usually form a view about the child’s best interests based on both parent’s Court documents and an independent Family Report but often without meeting the child or even speaking to them. The new laws require ICLs to meet or speak to the child, unless the child is aged under 5 years or it is generally not appropriate.

 

REOPENING OLD CASES

It is well-established through previous Court decisions that once a parenting case has finished, a parent should not apply to re-open it unless there has been a “significant change in circumstances”. For the first time, this is now clearly stated in the Family Law Act.