A Step Forward: The 2023 Amendments to the Family Law Act 1975

In a world where change is the only constant, the law, too, must evolve to reflect the shifting dynamics of society. The 2023 amendments to the Family Law Act 1975 (Cth) represent a significant stride towards addressing the nuanced complexities of modern family disputes, particularly in safeguarding the rights of children and victims of family violence.

Unpacking the 2023 Amendments

The 2023 amendments to the Family Law Act are a response to these calls for change. They introduce several pivotal enhancements aimed at closing the existing gaps. For one, there’s an increased emphasis on the best interests of the child, ensuring that their safety and well-being are prioritized in all decisions.

The amendments came into force on 6 May 2024 and will apply to all court matters currently before the Federal Circuit and Family Court of Australia except for the cases where the final trial has commenced before 6 May 2024.

The Family Law Amendment Act 2023 changes to the Family Law Act 1975 could be summarised as follows:

• The Amendment Act streamlines the parenting framework, removing the presumption of equal shared parental responsibility.
• Independent Children’s Lawyers are now required to meet directly with children, convey children’s views to the court, with increased judicial discretion in international child abduction cases.
• Courts have greater powers to protect parties and children from protracted and adversarial litigation.
• The definition of “member of the family” and “relative” is expanded to include Aboriginal and Torres Strait Islander kinship systems.
• Compliance and enforcement sections regarding orders made about children are simplified.

The Repeal of a Presumption of Equal Shared Parental Responsibility

The 2006 reforms introduced a rebuttable presumption of equal shared parental responsibility, which meant that it was presumed to be in the child’s best interests for both parents to have equal responsibility for major long-term decisions and for the child to spend equal time or substantial and significant time with each parent. However, the amendments repeal these provisions, removing the presumption of equal shared parental responsibility and equal time arrangements. This means that the court no longer starts with the presumption of equal shared responsibility and instead focuses on determining what arrangements are in the best interests of the child.

Let’s take a look at how some parts of the Family Law Amendment Act 2006 were taken back, putting a bigger spotlight on what’s best for the child in family law situations.

Initially, the Family Law Amendment Act 2006 established a presumption for equal shared parental responsibility (ESPR). This resulted in very confusion among practitioners and especially parties to Family Law proceedings, as many interpreted ESPR to mean equal shared parenting arrangements. This was never the case, but the confusion pursued for some 18 years. The 2023 amendments aim to clarify and resolve the ambiguity by stating that shared parenting should not be assumed as the default position in parenting disputes.

The main focus now is figuring out what arrangements will be best for the child. The updated provisions bring attention to children’s rights and weave in the principles of the Convention on the Rights of the Child. This Convention plays a key role in Australia’s legal framework and is expected to guide the interpretation of the relevant law provisions. It stresses the importance of protecting children and ensuring their ability to stay connected with both parents.

Revoking the 2006 provisions is not just a step back to the legal framework before 2006; it represents a significant move towards putting children’s rights at the forefront.

Promoting the Safety of the Children

The new approach considers the child’s safety and gives effect to the Convention on the Rights of the Child.

Placing more focus on the importance of the Convention is expected to accelerate the growing recognition that children have rights and are not just “objects of concern” in proceedings, a shift that’s already taking place in other countries.

The new law introduces fresh language to better identify risks and ensure safety in child custody situations, really focusing on taking early action to keep kids safe. It also points out how family violence can affect both the child and the person taking care of them. It also looks at how other places are dealing with similar issues and acknowledges the harm caused by controlling and coercive behaviour that often continues even after a separation.

• The language used in identifying risk in parenting cases replicates Article 19 of the Convention.
• The focus is on promoting the safety of the child rather than simply protecting them from risk.

• The changes encourage a positive move away from a “pro-contact” approach towards evaluating whether the contact promotes the child’s safety.

• The court is required to consider the potential safety repercussions for both the child and the carer.
• While separation may relieve the child from physical violence, it is acknowledged that ongoing controlling and coercive behaviour can still impact them after separation.
• Professionals may struggle to identify coercive control and investigate it effectively. Broader professional education and improved communication between police forces are needed to address this issue.

Children’s Views in Family Law Proceedings

The amendments elevate the significance of children’s views in family law proceedings, as mandated by the United Nations Convention on the Rights of the Child.

• Children have legal rights to be heard in all matters affecting them, including custody cases.
• The United Nations Convention on the Rights of the Child underscores the significance of listening to children’s voices and giving their perspectives the consideration they deserve.

• The requirement to take into account the perspectives of children extends beyond judicial cases to include family law mediation processes as well.

• Key principles to ensure the child’s voice is heard include transparency, voluntariness, respect, relevance, child-friendliness, inclusivity, and accountability.

• It’s important to keep children safe from harm and let them know how their participation makes a difference.

• The weight given to children’s views should be in accordance with their age and maturity.

The provisions in the Act consolidate the principles for considering the welfare of children in family law cases. The court must consider the immediate, medium, and long-term impact of proposed orders on the child’s safety, security, and well-being.

When determining children’s views, several factors should be considered to ensure their meaningful participation and respect for their rights. These factors include:

 Age and Maturity: The age and maturity of the child should be taken into account. Older children are generally better able to express their views and have a greater understanding of the implications of their opinions. Younger children may require age-appropriate methods of communication to express their views effectively.

 Capacity to Understand: The child’s capacity to understand the nature and consequences of the decisions being made should be considered. This includes assessing their ability to comprehend the information provided and the potential impact of their views on the decision-making process.

 Voluntariness: Children should be given the opportunity to express their views voluntarily, without coercion or pressure from others. They should be informed that their participation is not mandatory and that they can choose to withdraw or change their views at any time.

 Support and Assistance: Children may require support and assistance to express their views effectively. This can include the presence of a trusted adult, such as a family member, counselor, or child advocate, who can help facilitate their participation and ensure their voices are heard.

Contextual Relevance: The issues on which children are invited to express their views should be relevant to their lives and have a direct impact on the decisions being made. Children should be given the opportunity to address the issues they consider important and to provide input on matters that directly affect them.

Child-Friendly Environment: The environment in which children are invited to express their views should be child-friendly, accommodating their needs and preferences. This can include creating a safe and comfortable space, using age-appropriate language and communication methods, and allowing sufficient time for them to express themselves.

Respectful Treatment: Children’s views should be treated with respect and taken seriously. Their opinions should be listened to attentively, without judgment or dismissal, and given due weight in accordance with their age and maturity.

Feedback and Follow-up: Children should be provided with feedback on how their views have been considered and used in the decision-making process. They should be informed of the outcomes and given the opportunity to challenge or influence the analysis of the findings.

By considering these factors, decision-makers can ensure that children’s views are genuinely heard, respected, and given appropriate weight in matters that affect their lives.

Safety of the Parents and Carers

The amendments introduce a new requirement for the court to consider the safety of not only the child but each person who has care of the child when making parenting orders. This means that the court must assess whether it is safe for the child to have a relationship with each parent and other significant people in their life. If safety is raised as an issue, the court must determine whether it is safe for the child to spend time with a particular parent or person before making any orders.

The new provisions are consistent with Article 9 of the Convention on the Rights of the Child, which emphasizes the child’s right to maintain personal relations with both parents. However, the amended law now requires a determination of safety before orders for a child to have a relationship with either parent or other significant persons can be made.

The assessment of the risk posed to the child’s safety should be conducted before making “live with” or “spend time” orders. The possibility of a meaningful relationship between the child and the parent is now dependent on whether it is safe for that relationship to occur.

Revision of Orders. Rice v Asplund becomes part of the Family Law Act 1975

Section 65DAAA of the Amended Act outlines the conditions for reconsidering final parenting orders. A court must not reconsider a final parenting order unless there has been a significant change of circumstances since the order was made.

The court must determine if it is in the best interests of the child to reconsider the order, taking into account the significant change of circumstances. The burden of establishing a significant change in circumstances lies with the applicant, unlike the current practice where the burden is on the respondent. The section codifies existing case law, including the principle derived from the Rice and Asplund case. The court should consider the reasons and evidence behind the earlier order and should not lightly entertain an application to reverse it. The threshold for reconsideration is not merely the existence of fresh evidence, but the nature and quality of the change in circumstances.

The court must consider the past circumstances, the likelihood of significant changes in orders, and the potential detriment to the child caused by further litigation.

The Best Interests of the Child

The amendments shift the focus from promoting shared parenting to prioritizing the best interests of the child. The court is now required to consider a range of factors, including the child’s safety, their views, their developmental and cultural needs, the capacity of each parent to meet those needs, and the benefit to the child of having a relationship with both parents and other significant people in their life. The emphasis is on determining what arrangements will promote the child’s safety and well-being, rather than assuming that equal time with both parents is always in the child’s best interests.

The new provisions confirm the court’s broad discretion in determining the best interests and safety of the child in custody cases.

Overall, the amendments to the parenting order framework shift the focus from a presumption of equal shared parental responsibility and equal time arrangements to a more child-centered approach that prioritizes the best interests and safety of the child. This represents a reversal of the 2006 reforms and a change in the existing ‘pro-contact’ culture of family law towards a greater emphasis on the individual rights and needs of the child.

Convention on the Rights of the Child. What Are the Children’s Rights?

In 1989, global leaders recognized that children, being under 18, require specific care and protection distinct from adults. This led to the creation of the Convention on the Rights of the Child (CRC), marking the first international treaty to legally bind signatories to uphold the comprehensive spectrum of human rights. This includes civil, cultural, economic, political, and social rights, tailoring its provisions to the unique needs of children.

The Convention is one of the most widely accepted human rights treaties, with 193 parties ratifying it—surpassing the membership of the United Nations and those who have joined the Geneva Conventions.

What are the rights of the child according to the Convention on the Rights of the Child? Some of the key rights outlined in the CRC include:

1. Right to Life, Survival, and Development: Children have the right to life and to develop to their fullest potential physically, mentally, and emotionally.
2. Right to Non-Discrimination: Children have the right to be treated equally and without discrimination based on their race, color, sex, language, religion, national or social origin, disability, birth, or other status.
3. Right to Protection from Harm: Children have the right to be protected from all forms of violence, abuse, neglect, and exploitation.
4. Right to Express Their Views: Children have the right to express their views freely in all matters affecting them, and their views should be given due weight according to their age and maturity.
5. Right to Privacy: Children have the right to privacy, including protection from unlawful interference with their privacy, family, home, or correspondence.
6. Right to Education: Children have the right to access quality education that is free, compulsory, and directed to the development of their full potential.
7. Right to Health and Healthcare: Children have the right to the highest attainable standard of health and to access healthcare services.
8. Right to Play and Leisure: Children have the right to engage in play, rest, leisure activities, and participate in cultural and artistic activities.
9. Right to Family Life: Children have the right to live with their parents, unless it is not in their best interests, and to maintain contact with both parents if separated from them.
10. Right to Protection in Armed Conflicts: Children have the right to special protection during times of armed conflict, including protection from recruitment into armed forces and participation in hostilities.

These are just a few examples of the rights outlined in the Convention on the Rights of the Child. The Convention recognizes children as individuals with their own rights and emphasizes the importance of their well-being, development, and protection.

A Personal Perspective

On a personal level, observing the law’s progression towards addressing the complexities of family dynamics is a positive development. Having witnessed the adverse effects of the legal system’s deficiencies firsthand, the revisions bring a ray of hope for children’s voices to receive recognition in court proceedings and for their individual perspectives to be valued. This shift signifies a transition from merely acknowledging children’s rights to actively empowering them.

The 2023 amendments to the Family Law Act 1975 (Cth) represent the most significant overhaul of parenting arrangements in Australia since 2006. While the full impact of these changes remains to be seen, it is a cultural shift that aims to enhance the Family Law Act 1975, thereby more effectively addressing the needs of families undergoing separation.