Navigating the Family Law Amendment Act 2023 (Cth): Key Changes

The Family Law Amendment Act 2023 (Cth) (the Amendment Act) introduces significant changes affecting families and professionals in the family law space  including new legislation about how the Courts will make parenting orders in the best interests of a child. These changes include introducing a refined list of factors for the Courts to consider, new provisions on decision-making about major long-term issues, and the removal of the presumption of equal shared responsibility.

Most of the changes will take effect on 6 May 2024 and apply to all new and existing matters, except in some circumstances where a final hearing has already commenced.

Parenting Framework

The Amended Act simplifies the objects of Part VII (Children) of the Family Law Act 1975 (Cth) as follows:

1. to ensure that the best interests of children are met, including by ensuring their safety; and
2. to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

The much more refined version of the section 60CC factors removes hierarchy and focuses on child-centric decisions. The new factors to consider when determining a child’s best interests are:

1. what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
   (a) the child;
   (b) and each person who has care of the child (whether or not a person has parental responsibility of the child); 
2. any views expressed by the child;
3. the developmental, psychological, emotional and cultural needs of the child;
4. 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;
5. the benefit to 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;
6. anything else that is relevant to the particular circumstances of the child.

In addition, there is now a standalone provision requiring certain factors to be taken into account when determining the best interests of a child who is an Aboriginal or Torres Strait Islander child. 

The new 60CC(2A) provides that when considering what arrangements would promote the safety of a child and each person who has the care of a child, the Court must consider any history of family violence, abuse or neglect and any family violence order, past or present. 

The presumption of equal shared parental responsibility has been repealed and the mandatory consideration of equal time or substantial and significant time has been removed.

The Amendment Act provides a new framework for decision-making as follows:

• parents are encouraged to consult each other in relation to major long-term issues in relation to a child, unless there are orders stating otherwise: s 61CA of the Family Law Act 1975 (Cth);
• courts will continue to make orders relating to parental responsibility and will now refer to joint or sole decision making on major long-term issues: s 61D(3) of the Family Law Act 1975 (Cth); and
• parties are required to consult with each other and make a genuine effort to come to a joint decision where they have an order for joint decision making on major long-term issues: section 61DAA of the Family Law Act 1975 (Cth).

There are amendments to the obligations of advisors such that advisors must advise clients of the paramountcy of the best interests of the child and encourage their client to act in child’s best interest by applying the section 60CC factors: sections 60D and 63DA of the Family Law Act 1975 (Cth)

The rule in Rice v Asplund 1979 is now codified in a new section: 65DAAA of the Family Law Act 1975 (Cth), providing for the circumstances in which a final parenting order can be reconsidered.

Enforcement of child-related orders

A redrafted Division 13A aims to make clearer consequences for non-compliance with parenting orders and registrars of both Divisions of the Federal Circuit and Family Court of Australia are empowered to now make parenting orders for ‘make-up’ time.

Inclusive definitions for family

Broader definitions of 'relative' and 'member of the family' are included in the new legislation, embracing cultural kinship and including Aboriginal and Torres Straight Islander concepts of family.

Independent Children’s Lawyers (ICLs) and Hague Convention Proceedings

There is now a mandatory obligation on ICLs to meet with children and allow the child an opportunity to express a view, with the ICL to have the discretion as to how this is to occur: section 68LA(5A) Family Law Act 1975 (Cth).

Exceptions to this requirement include where a child is under 5 years of age, where the child does not want to meet with the ICL or express their views, or where exceptional circumstances exist justifying not performing the duty, such as where doing so would expose the child to risk or harm (physical or psychological): section 68LA(5B) and (5C).

The new legislation repeals the restriction that ICLs will only be appointed in exceptional circumstances in Hague Convention proceedings such that ICLs will be appointed under the same circumstances that otherwise apply to family law matters. The amendments further remove the threshold requirement that a child’s objection to return (under the Hague Convention) could not be taken into account unless that objection imported a strength of feeling beyond the mere expression of a preference or of ordinary wishes. 

Case Management and Procedure

The new legislation introduces 'harmful proceedings orders' which the court can make on application or of its own volition to prevent vexatious litigants from filing proceedings without the leave of the Court.

The ‘overarching purpose of family law practice and procedure’ is extended to all proceedings commenced under the Family Law Act 1975 (Cth). It is to facilitate the just resolution of disputes:

1. in a way that ensures the safety of families and children; 
2. in relation to proceedings under this Act in which the best interests of a child are the paramount consideration—in a way that promotes the best interests of the child; 
3. according to law; and
4. as quickly, inexpensively and efficiently as possible.

It is important to note that there is a statutory duty on parties and legal representatives to conduct proceedings in a way that is consistent with the overarching purpose. Breaching this duty may result in a costs order being made against a party or legal representative. 

Repeal of section 121 of the Family Law Act 1975 (Cth)

Section 121 of the Family Law Act 1975 (Cth) is repealed by the Amendment Act and replaced with Part XIVB, with the intention of simplifying the language and clarifying information sharing. The offences and penalties remain. 

Regulating Family Report Writers

The Amendment Act allows the Government to regulate standards and requirements to be met of family report writers. The proposed regulations are akin to those regulating family dispute resolution practitioners.

The Amendment Act has, in total, ten schedules of changes which must now be considered and applied in family law matters from 6 May 2024. The above summary highlights the key substantive changes of the new legislation.

For more information, please contact our Family and Relationship Law team at HopgoodGanim Lawyers.