NAVIGATING THE KEY CHANGES TO FAMILY LAW - EFFECTIVE 6 MAY 2024

As of 6 May 2024, new changes to the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 will come into effect. The changes will not only apply to new cases, they will also be implemented in existing cases, unless the final hearing for the matter has begun. This blog post will endeavour to provide readers with insight on how their parenting matters may be impacted, as well as provide useful tips on how best to navigate the new system to ensure the best interest of their child. 

The Family Law Amendment Act 2023

Under the new amendments, the child, their wellbeing and their rights are of paramount concern when making a parenting order. The amendments to the act provide for a family law system that is safer and simpler to allow parents to navigate the system in an already troubling time. The substantive changes to the act not only consider the best interests of the child, they also empower the connection between the courts and the First Nations community, as well as ensure a legal system that is accessible, timely and simple

Changes to how the Child’s ‘Best Interest’ is determined

From 6 May 2024, the court will no longer have to consider the ‘primary’ and ‘additional’ considerations when determining the best interests of a child. As a substitute, there will be a list of general considerations that will assist the court in determining an outcome that best promotes the welfare of the child. 

These considerations are inclusive of:

• The need to promote the safety of the child and each person who has care of the child, whether or not this person has parental responsibility for the child (including safety from family violence, abuse, neglect or other harm). 
• Any views expressed by the child. 
• The developmental, psychological, emotional and cultural needs of the child. 
• The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs. 
• The benefit to the child of being able to have a relationship with the child’s parents or other significant people, where it is safe to do so. 
• Other aspects that are relevant to the particular circumstances of the child. 

The tokenistic approach to the considerations of the welfare of Indigenous Australian children has also been dramatically improved by way of making sure that the court is lawfully bound to protect Indigenous Australians’ best interests through a cultural lens:

These considerations are inclusive of:

• The child’s right to enjoy their Aboriginal or Torres Strait Island culture by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language. 
• The likely impact of any proposed parenting order on the child’s right to enjoy their Aboriginal or Torres Strait Islander culture. 

Please note that with respect to changes of the legislation with regard to Indigenous Australian children there is a further amendment that expands the definition of ‘relative’ and ‘member of the family’ to include Aboriginal and Torres Strait Islander definitions of what constitutes a family member. 

Removing the presumption of ‘equal shared parenting responsibility’ and the notion of ‘equal time’

The presumption of shared parental responsibility, originally outlined in section 61DA of the Act, has now been replaced. Instead, the courts will now mandate that the parties engage in consultation regarding long term issues associated with the parental orders and decision making. The Court will also be more open to tailored arrangements for parental responsibility, meaning that one parent may have sole responsibility for an activity to do with the child. Again, the child’s best interest is to be of paramount concern when making decisions or engaging in conduct to do with the child.

Changes to Final Parenting Orders

The Court may only entertain a new application after final parenting orders are made if there has been a significant change of circumstances, and it is in the child’s best interests to reconsider the Final Order. If all parties agree to change the Final Order, even if the aforementioned points have not been established, it is possible to do so. 

Changes to the Obligations of an Independent Children’s Lawyer

Whilst an Independent Children’s Lawyer (ICL) is to remain as an independent, impartial party to family law proceedings, it is now an obligation for the ICL to meet and speak with the child that the proceedings relate to. This requirement is to be met unless:

• The child is under the age of 5 years
• The child does not want to meet with the ICL and express their views
• There are exceptional circumstances (e.g. the child will be subject to violence if the meeting were to occur). 

The Family Law Amendment (Information Sharing) Act 2023 

The Family Law Amendment (Information Sharing) Act 2023 amends the Family Law Act by introducing important features outlined in the ‘National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems’. The amendments aim to improve communication between the Courts, child welfare agencies and police services about information relating to child abuse, neglect, and family violence risks. 

These changes will assist with enhancing the information-sharing between these connected services to help create a more holistic system. In recognition of the high number of family law proceedings involving family violence, the amendments seek to improve the efficiency and effectiveness of information sharing to prioritise the safety and wellbeing of children affected by or at risk of harm. There are several important changes to be aware of:

Information sharing orders

As the courts have an important role in gathering information related to the welfare of children, the amendments introduce two types of information sharing orders to assist the court with obtaining targeted information to identify risks. 

If there is actual or potential risk of abuse, neglect or family violence, the court can order information sharing agencies, such as child protection, police and firearm agencies, to provide particulars, documents or information to support the best interests of the child. Common examples of documents a court may request are notifications about the suspected abuse of a child in the proceeding and/or suspected abuse by a party to another child. 

Disclosure of protected material

‘Protected material’ is a new addition to the Family Law Act and refers to a range of different types of information, inclusive of particulars, documents and informations that are subject to legal professional privilege, disclose the identity of persons communicating to the agency in confidence, or present an unreasonable risk of harm. This section allows information sharing agencies to provide protected materials to the court if they believe that the information is important to the court’s decision-making about the safety of a child.

It is important to note that while information sharing agencies are at liberty to provide protected material, there is no requirement of disclosure. There are limits in place to protect the identity of notifiers of suspected child abuse or family violence. The court must protect the privacy of a notifier and cannot disclose any information related to their identity unless limited exceptions apply, such as where the notifier is a party to the proceedings or where non-disclosure risks prejudicing the administration of justice. 

Regard to information sharing disclosures

Prescribed by the Family Law Regulations 1984, information sharing agencies and courts have a responsibility to ensure that information sharing safeguards are followed to avoid the mismanagement of sensitive information. These safeguards relate to the safe and secure handling, storage and access to information that has been shared for the purpose of identifying and assessing family violence and child abuse risks. 

Court permission for subpoena

Where the court has made an order for an information sharing agency to provide documents or information related to abuse, neglect or family violence, parties to proceedings must seek permission by the court to issue a subpoena. The aim of this amendment is to promote court-led information sharing and reduce duplication of materials. Overall, this section endeavours to minimise the burden on parties initiate subpoenas and avoid information sharing agencies wasting resources by completing repeated requests. 

Avoiding Implications that Arise with New Legislation

Overall, while these amendments are a shift in the right direction for the best interests of the child, there will be elements of scrutiny in the initial stages of provision. There will inevitably be an element of uncertainty and it is strongly advised that parents who will be before the court with respect to parenting matters in the near future seek legal advice. 

If you have any questions about the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023, or are interested in learning more about how these amendments may impact your family matter, reach out to our specialist team of Sydney family lawyers today.