The Family Law Amendment Act 2023 comes into effect on 6 May 2024. The impact of this Act will change the way parenting matters are dealt with by the Courts. The only cases that will not be impacted are those which final hearings are in progress on 6 Mary 2024.
It is interesting that there were significant changes to the Family Law Act in 2021 with the introduction of the Federal Circuit and Family Court of Australia. Only two years later they are proposing further changes.
The most significant change is the removal of Section 65DAA which required courts to consider making an order that the children spend equal time, or substantial and significant time, with each parent, where an order for equal shared parental responsibility was made. It is no longer the case that equal shared parental responsibility will be the norm.
In my opinion, the introduction in 2021 of “equal shared responsibility” evolved with societies’ expectations on parenting and allowed for parents to have share parental responsibility to develop a meaningful relationship by both parents with their Child/ren. Not wanting to be seen as pushing the men’s rights platform, it does appear the new changes in my opinion are a retrospective step and will disadvantage the parent that does not have the primary care of the Child/ren.
The important changes are as follows:
- Factor 1 – the capacity of each parent who has or is proposed to have parental responsibility for the child to provide for the Child’s needs. This is a significant change from the current status quo which is equal shared parental responsibility. I reiterate that this is not a positive step in Family Law and will have negative impacts, the real test will be how the Judges rule in relation to parental responsibility.
- Factor 2 – the benefit of the Child of being able to have a relationship with the Child’s parents and other people who are significant to the Child, where it is safe to do so. This is another significant change as the current status quo is that it is important for the Child to have a meaningful relationship with each parent. This is also not a positive step forward as it will impact significantly on the relationship of the Child with the parent that they do not live with and it will be even more detrimental if it is a case where the parent is isolating the Child from the non-resident parent.
- Factor 3 – when determining the parenting arrangement in the best interests of the Child, the court must now consider the revised factors of Section 60CC(2) which focus on the safety of the Child from family violence, abuse, neglect and other harm;
- Factor 4 – any views expressed by the Child;
- Factor 5 – the developmental, psychological, emotional and cultural needs of the Child;
- Factor 6 – anything else that is relevant to the particular circumstances of the Child; and
- Subsection 60CC(3) has now been inserted which focuses on the Rights of Aboriginal and Torres Strait Islander children to enjoy their culture.
A thought and informational piece by Belinda Glare of Rothwell Lawyers who primarily practices in family law with a background in corporate and insolvency law. Belinda understands the complex sides of both areas of law and therefore is able to assist further and provide more information on this complex situation.
