How the Family Law Amendment Act 2023 may affect your family law proceedings

Major changes are coming to family law that could impact your parenting proceedings. These changes come about from the Family Law Amendment Act 2023 (“the amendments”). 

The aim of these changes are to: 

• simplify the family law system 
• prioritise the children’s best interests, and 
• improve protections for families affected by domestic violence 

These changes will apply to all Parenting Orders made from 6 May 2024 onwards,  including matters commenced in the Federal Court and Family Court of Australia before that date so long as they have not had their final hearing. 

Let’s take a look at the key changes the amendments make to the Family Law Act 1975. 

Equal parental responsibility and decision-making 

You may have heard of the presumption of equal shared parental responsibility. This presumption will no longer exist from 6 May 2024. Instead, decisions about a child’s long-term care, welfare and development will depend on what’s in the child’s best interests. 

However, the amendments encourage joint decision-making by parents on long-term issues. 

Best interests of the child 

When deciding what’s in the best interests of a child, the Court must consider a range factors. Currently, the factors are divided into: 

• primary considerations, and 
• additional considerations 

The amendments replace these with six general factors, namely: 

1. the safety of the child and each person who has care of the child 
2. the views of the child 
3. the developmental, psychological, emotional and cultural needs of the child 
4. the capacity of each proposed carer to provide for the child’s needs 
5. the benefit to the child of having a relationship with both parents and other significant people 
6. any other factor that’s relevant to the child 

The Court will also consider the right of Aboriginal and Torres Strait Islander children to enjoy their culture. 

Changes to Final Parenting Orders 

The amendments codifies the decision of Rice v Asplund. This relates to cases where a party wants changes made to Final Parenting Orders. 

Under the amendments, a Court can only change Final Parenting Orders if: 

1. there’s evidence of a significant change in circumstances since the making of the final orders, and 
2. it’s in the best interests of the child to change the orders 

The views of the child 

An Independent Children’s Lawyer needs to meet with the child and ask them for their views. Those views must then be given to the Court. This is subject to certain exceptions. 

Enforcement of Parenting Orders 

The amendments strengthen the ability to enforce parenting orders. How? By making the rules for enforcing parenting orders both easier to understand and use. 

The aim is to encourage parties to follow parenting orders. 

Court Registrars will also be able to make Compensatory Time Orders. This is a type of Court Order that can be made when a child hasn’t spent time with a person, as required by a Parenting Order. 

Protection from harmful effects of litigation 

The amendments change the handling of family law proceedings. There’s a new power stopping people from repeatedly filing new applications. 

The aim here is to protect the parties and children from the harmful effects of litigation.

Review and implementation 

There will be a review of these amendments in three years’ time to assess the effectiveness of these amendments. 

This represents the first significant reform of family law in Australia. 

Are you a parent or grandparent needing help with family law proceedings? Get in touch with our specialised team today.