Family law changes are coming into effect, aiming to create a safer and more flexible family law system that prioritises children’s best interests and encourages better communication among parents and legal professionals.
The changes to the Family Law Act 2023 and the Family Law (Information Sharing) Act were passed in October 2023 and will take effect on May 6.
What are the changes to the Family Law Act 2023?
1. Best Interests of the Child
The new amendments, which are part of the family law changes, focus on ensuring that every court decision serves the child’s best interests. To determine these interests, the court considers various factors, such as the child’s safety, emotional and developmental needs, and relationships with family members. It also looks at whether the child has been exposed to violence, abuse, neglect, or any other form of harm.
2. Removal of the Presumption of Equal Shared Parental Responsibility
Previously, the law presumed that parents should share responsibility equally. However, this presumption often led to confusion and conflicts. The new amendment allows the court to assess each case individually and decide what’s best for the child. Parents are encouraged to consult each other on long-term decisions involving the child, such as education or health care. However, they don’t need to consult on everyday matters like what the child eats or wears. This change aims to reduce conflicts between parents over minor issues.
3. Independent Children’s Lawyer (ICL)
As part of the latest family law changes, an independent children’s lawyer (ICL) has been introduced. The role of the ICL is to represent the child’s best interests in court proceedings. The ICL acts as a voice for the child, ensuring that their views and needs are considered when making decisions. The ICL does not represent the child in the traditional legal sense but instead gathers information and presents it to the court to help guide decisions that affect the child. The ICL meets with the child, gathers their views, and provides a neutral perspective to the court, ensuring that the child’s voice is heard.
4. Protection against Family Violence and Abuse
The new amendment aims to protect children from family violence, abuse, and neglect by enhancing information-sharing between courts, police, child protection, and firearms agencies. This ensures that the court has all the necessary information to make decisions that safeguard the child’s safety and well-being.
5. Compliance and enforcement of Parenting Orders
To ensure consistent enforcement of parenting orders, the amendment introduces changes that simplify compliance. It removes some specific penalties, such as community service orders, allowing the court more flexibility in addressing non-compliance. The court can order a change in parenting time or enforce parenting programs to resolve issues. This flexibility aims to encourage parents to follow court orders and reduce conflicts.
6. Expanded definition of Family Members
The definition of “family member” has been broadened to include step parents, extended relatives, and Aboriginal and Torres Strait Islander kinship relationships. This change recognises the diverse family structures in Australia and ensures that all significant people in a child’s life can be considered when making decisions about the child’s best interests.
7. Communication during Family Law proceedings
This amendment prohibits sharing information that identifies parties involved in family law cases on social media, such as Facebook or X (formerly Twitter). However, these family law changes allow private conversations with family and friends. This change aims to protect the privacy of those involved in legal proceedings and prevent further conflicts.
You can download a fact sheet for parents on the changes to the Family Law Act 2023 at the Attorney-General’s Department website.
Introducing Equal, Substantial, and Significant Time
The previous legislation included a presumption of “equal shared parental responsibility,” which was often misunderstood as implying that both parents should have equal time with their children. The new law clarifies this by focusing on what is best for the child without a presumption of equal time. These family law changes mean that the court will consider the unique circumstances of each case when deciding how much time each parent should spend with their child.
Instead of assuming an equal split, the changes introduce the concept of substantial and significant time. This doesn’t necessarily mean an equal division of time but aims to ensure that each parent has meaningful time with their child, covering various aspects of the child’s life.
How parents’ time with their children will be decided:
- Regularity and consistency: The time a parent spends with their child should be regular and consistent, providing stability and routine in the child’s life.
- Quality time: The court looks at the quality of time each parent spends with the child, including engagement in school activities, extracurricular events, and daily routines.
- Diversity of activities: It considers the variety of activities a parent engages in with the child, such as school, sports, or leisure activities.
- Relationship building: The time spent should foster a strong relationship between the child and the parent, supporting the child’s emotional and social development.
What is seen as Equal Time?
“Equal Time” suggests a parenting arrangement where both parents share time with their children equally. This could involve a 50/50 split in custody, with children alternating between both parents’ homes on a regular schedule. Equal time is often considered when both parents can cooperatively manage shared responsibilities, live relatively close to each other, and maintain a stable environment for the children. However, this doesn’t necessarily mean that equal time is always in the child’s best interests. It can be challenging to achieve if parents have high levels of conflict or live far apart.
In practice, achieving a truly equal time arrangement requires significant coordination between parents. It involves balancing school schedules, extracurricular activities, and the parents’ work commitments, among other factors. If done properly, equal time can foster strong relationships with both parents, providing stability for the children. However, when there’s a high level of conflict or logistical difficulties, equal time may not be the best option.
What is seen as Significant and Substantial Time?
“Substantial and Significant Time” is a broader and more flexible concept than equal time. It aims to ensure that children spend quality time with both parents, even if the division is not exactly 50/50. This concept encompasses not only the quantity of time spent with each parent but also the quality and variety of activities.
The substantial and significant time concept gives the court flexibility to design a parenting arrangement that suits the unique needs of the family. It acknowledges that each situation is different and that a one-size-fits-all approach may not be suitable for everyone. By focusing on quality, regularity, and relationship-building, this concept seeks to create a parenting schedule that fosters a healthy, supportive environment for the child.
Overall, while “equal time” can work in some cases, “substantial and significant time” allows for more adaptable arrangements, enabling the court to tailor custody decisions to each family’s specific circumstances and, most importantly, the best interests of the child.
Family law changes: 7 Factors considered by the Family Court
1. Safety and protection
The court prioritises the child’s safety, ensuring they are not exposed to family violence, abuse, or neglect.
2. Child’s needs and well-being
The court examines the child’s emotional, developmental, and physical needs and ensures that the parenting arrangement supports these needs.
3. Child’s views and preferences
If the child is old enough to express their views, the court considers their preferences when making decisions.
4. Parenting capacity
The court evaluates each parent’s ability to provide for the child’s needs, including their health, emotional stability, and financial capacity.
5. Parental cooperation
It assesses whether parents can communicate effectively and work together to make important decisions for the child.
6. Existing relationships
The court considers the child’s existing relationships with parents, siblings, extended family, and other important figures.
7. Cultural connections
If the child is part of an Aboriginal or Torres Strait Islander community, the court ensures they have the opportunity to connect with their culture, community, and language​Â
Overall, these changes are designed to create a more supportive and efficient system for families going through challenging times. Families can benefit from a more child-centered approach, better safety measures, reduced conflict, and fairer outcomes in financial and parenting matters. By focusing on these key areas, the changes to the Family Law Act 2023 are designed to put kids first, ensuring their safety, stability, and long-term well-being during and after family legal disputes.
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