Family Law Amendment Act 2023: The Winds of Change Bring a New Era in Family Law 

Written by Adam Mitchell.

The Family Law Amendment Act 2023 is ushering a new age in how the Courts will now be approaching parenting matters.

The Courts have long been agitating for change to keep them in tune with an ever-evolving family structure. The Amendment effective on 6 May 2024 is set to change the way that parents and practitioners approach parenting matters that have a direct impact on the children.

The Family Law Amendment Act 2023 is primarily achieving the following goals:

1. Ending Presumed Joint Parental Responsibility: It has been long considered that both parents have a presumed joint parental responsibility. This will no longer be the case and will be assessed on a case by case basis as to whether this is applicable.
2. Mandatory Collaboration: The parties will now be required to consult with each other and make a genuine attempt to come to a joint decision.
3. Selective Consultation: Parents will no longer be required to consult with each other about decisions that are not major long-term issues.
4. Child-Centric Focus: The Court will remain primarily focused on the best interests of the child however, they now include a list of factors that will be considered:
   1. The safety of the child.
   2. The child’s view.
   3. The needs of the child (psychologically, emotionally and/or culturally).
   4. The means of each party responsible for providing for the child’s needs.
   5. The benefit of the child having a relationship with significant persons (grandparents, siblings etc).
   6. Anything else that may be relevant.
5. Cultural Considerations: Courts will now consider how the orders will impact a child’s ability to experience their Aboriginal and Torres Strait Islander culture.
6. Adapting to Change: Recognising that children’s needs may evolve, and what may be applicable for the children today, may not be applicable in another five or ten years. With this in mind, the legislation has now enshrined the principle in Rice v Asplund that permits parties to approach the Court to vary or change orders where there has been a significant change in circumstances, ensuring decisions continue to serve the child’s best interests.

Whether these changes will result in the change the Government hopes for is anyone’s guess however, there is no denying that this will put a new flair and flavour to parenting matters moving forward.

The Amendment introduces a renewed focus on the child’s welfare, putting the child’s best interests and safety at the heart of all parenting matters, ensuring the children have a strong connection to culture and emphasising that parenting is not a right but a privilege.

As these reforms take effect, they promise to bring fresh perspectives to parenting disputes. The winds of change have indeed swept through the Family Law regime, sounding a new chapter whose outcomes, whether for better or worse, will only be revealed with time.