Understanding the Family Law Changes

Navigating the New Landscape of Family Law: What You Need to Know

If you find yourself in the midst of a separation or divorce and grappling with the complexities of parenting arrangements, you’re not alone. The landscape of family law in Australia is about to undergo significant changes, however, with amendments set to come into effect from May 2024 and it is hoped that these amendments will make navigating post-separation parenting arrangements a lot simpler.

Let’s delve deeper into what these changes mean for you and your family.

Understanding Parenting Arrangements: Putting Children First

Following a separation, most parents strive to reach agreements regarding their children’s care and upbringing. However, when disputes arise or clarity is needed, the family court intervenes through the issuance of parenting orders. These orders encompass crucial aspects such as the division of time spent with each parent and the allocation of decision-making responsibilities concerning the child’s welfare.

The court’s paramount consideration when making parenting orders has always been the best interests of the child – this will not change. The new amendments, however, are set to simplify how “best interests” are determined with a strong emphasis on factors such as:

1. Safety: Ensuring the child’s protection from any form of harm, including family violence.
2. Child’s Views: Acknowledging and considering the child’s perspective and preferences.
3. Developmental Needs: Catering to the child’s developmental, psychological, emotional, and cultural requirements.
4. Parental Capacity: Assessing each parent’s ability to meet the child’s needs adequately.
5. Relationships: Recognising the significance of the child’s relationships with both parents and other significant individuals.
6. Unique Circumstances: Taking into account any other relevant factors specific to the child’s situation.

Moreover, for Indigenous children, there’s a heightened focus on preserving their cultural identity and connection to their Aboriginal or Torres Strait Islander heritage.

It must be noted, however, that these factors were to be taken into account under previous legislation too, together with a myriad of other matters and it remains to be seen whether or not this simplified approach will make a significant difference to outcomes we see in court settings.

Decision-Making Dynamics: Joint or Sole Responsibility

Major decisions impacting the child’s life, such as education and healthcare choices, fall within the purview of parental responsibility. Under the current legislation, there is an assumption that the biological parents of a child have equal shared parental responsibility save for in limited circumstances.

Under the new legislation, there is no presumption of parental responsibility and the court may stipulate joint decision-making arrangements (necessitating mutual agreement between parents) or opt for sole responsibility to be vested in one parent, depending on what is in the child’s best interests.

Dispelling Myths: Equal Time vs. Best Interests

Contrary to popular belief, the current legislation does not give parents an automatic entitlement to equal time with your child. Instead, when the court makes an order for equal shared parental responsibility, it must consider orders for equal time, if it is reasonably practicable and in the children’s best interests.

Once the amendments take effect, the court will no longer be required to consider equal time and care arrangements will be tailored to suit the individual needs and circumstances of each child, guided by what is deemed to be in their best interests.

Navigating Change: Modifying Parenting Orders

Whilst it is not expressly stated in the current legislation, it has long been the case that final parenting orders could only be changed when there has been a significant change in circumstances.

Although the amendments do not seek to vary this requirement, it will now be enshrined in the legislation and a parent seeking to vary orders will not only need to show a significant change in circumstances but also that, in all the circumstances, it is in the best interests of the children for orders to be reviewed.

Enforcing Compliance: Upholding Parenting Orders

Ensuring compliance with parenting orders is paramount for safeguarding the child’s welfare and maintaining the integrity of the legal process. Provisions in the new legislation include the requirement that a costs order must be made against a person found to have breached an order and remove the power for a court impose a term of community service for non-compliance.

Empowering Children: The Role of Independent Children’s Lawyers (ICLs)

Independent Children’s Lawyers (ICLs) are regularly used by the court in complex matters to represent a child’s best interests. Until now, however, there was no obligation on the ICLs to actually meet with the children whom they represent.

Under the new legislation, ICLs will be required to meet directly with children, recognizing the importance of children’s voices in legal proceedings, although their role remains to ultimately provide their own, independent, perspective about what arrangements or decisions are in the children’s best interests.

Respecting Privacy: Guidelines on Communication

With an emphasis on privacy and confidentiality, guidelines on the dissemination of information pertaining to family law proceedings have been revised to streamline processes and safeguard individuals’ privacy rights.

Under the new legislation, the courts will be able to obtain information from police, child protection and firearms agencies much quicker than they have been able to to-date and ensure that sensitive information is only disclosed in a safe and appropriate manner.

Looking Ahead: Embracing Change

The impending amendments to our family law system underscore a concerted effort to foster a legal framework that is equitable, child-centric, and conducive to the promotion of familial well-being.

If you find yourself grappling with these changes or wanting clarification on how they apply to your circumstances, seeking legal advice or support can provide invaluable guidance and assistance.

Remember, you’re not alone on this journey, and there are resources and professionals available to help you navigate the complexities of family law with confidence and clarity.