RMB Lawyers Partner and Family Law practitioner Claire Osborne explain important changes to Family Law legislation in 2024.
A central recommendation from the Australian Law Reform Commission Review into Family Law in 2019 was for the Family Law Act to be simplified, noting that Family Law Act can be confusing and complicated for parents experiencing family breakdown.
As a response, the Family Law Amendment Act 2023 (FLAA) came into effect in May this year (2024) and aims to streamline and clarify certain aspects of Family Law. These changes will impact parents, children, and legal professionals alike.
Previously factors that had to be considered in making parenting arrangements were overly long and complex. For example, when the court was asked to consider the ‘best interests of the child’, it considered two primary factors and 13 additional factors. This was confusing and led to lengthy court judgments.
The FLAA simplifies this list of ‘best interest factors’ to six, to provide a contemporary framework for courts and for separating families to use as a guide when making their own arrangements.
There is an additional best interests factor included for Aboriginal and Torres Strait Islander Children.
The previous presumption of ‘equal shared parental responsibility’ and associated requirements for the courts to consider specific time arrangements in the Family Law Act were commonly misunderstood as providing parents with an entitlement to spend equal time with a child. This was incorrect.
The presumption was actually about parents having an equal share in making decisions about major long-term issues in relation to their children. This confusion sometimes led to parents having unrealistic expectations about their entitlement to equal time, when making arrangements for the care and responsibility of their children following a separation.
It also sometimes led to lengthy and unnecessary litigation and outcomes that were not focused on the needs of the children.
The FLAA removes the presumption and the associated requirement for the court to consider specific time arrangements. The FLAA will continue to recognise the importance of children maintaining a relationship with both parents, as part of the assessment of a child’s best interests and it will remain open to a court to make orders for equal time arrangements, where this is in best interests of the child.
If you have an existing parenting order, nothing will change. As is the case now, an existing order can only be varied by a new parenting plan made by the parties or by a court.
If you are concerned about your divorce or seperation, begin the process by phoning on Freecall 1800 681 211 for a consultation, or use our 'Ask a Question' tool on our website.