The Family Law Amendment Act passed in Parliament on 19 October 2023 and will take effect in relation to all family law matters after 6 May 2024. The new laws will alter the Family Law Act (the Act) and change the way the Federal Circuit and Family Court of Australia approach parenting matters.

The amendments to the Family Law Act aim to make the family law system safer and simpler for separating families to navigate and ensure the best interests of children are placed at its centre.

Key changes to the Family Law Act from May 2024 include:

  • Removing the presumption of ‘equal shared parental responsibility’;
  • A new definition for ‘best interests of the child’;
  • Grounds for making changes to final parenting orders; and
  • The role of the Independent Children’s Lawyer.

Removing the presumption of ‘equal shared parental responsibility’ and reference to ‘substantial and significant time’

As of 6 May 2024, there will no longer be a legislative ‘presumption’ that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility in relation to the long-term decision-making for the children. There will also no longer be any reference to ‘substantial and significant time’ under the new legislation.

As before, Parents are still encouraged to consult with each other about major long-term decisions in relation to their children and when doing so, have regard to the children’s best interests as the paramount consideration.

 A new definition for what is in ‘the best interests of the child’

The factors for deciding what is in the best interests of children have also been simplified.

The Court will now consider six factors to decide what parenting arrangements will be in the best interests of the child, namely:

  • the safety of the child and people who care for the child (including any history of family violence and family violence orders)
  • the child’s views
  • the developmental, psychological, emotional and cultural needs of the child
  • the capacity of each person responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs
  • the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings)
  • anything else that is relevant to the particular circumstances of the child.

 Making changes to final parenting orders

From 6 May 2024, the Court may only entertain a new application after final parenting orders are made about children if:

  • there has been a “significant change in circumstances” AND
  • it is in the child’s best interests for the Final Order to be reconsidered OR there is agreement from all parties to the final order, even if there has not been a significant change of circumstances or it is not in the child’s best interests. 

Independent Children’s Lawyers

An Independent Children’s Lawyer (ICL) is an impartial party to family law proceedings. The Court appoints an ICL when the Court needs to obtain an independent assessment about the child/ren’s best interests. If an ICL is appointed in a matter from 6 May 2024, the ICL will have an obligation under the legislation to meet with and speak with the children that the proceedings relate to unless:

  • the child is under the age of 5 years (unless deemed appropriate);
  • the child does not want to meet with the ICL or express their views; or
  • there are ‘exceptional circumstances.’