On 6 November 2023, the Family Law Amendment Bill 2023 passed the Australian Senate. The Bill makes significant changes to how the family law system deals with parenting matters. This year, parliament also passed the Family Law (Information Sharing) Bill 2023, which makes changes to the ways that family courts receive and share information. Most of the provisions of the two Bills will come into effect on 6 May 2024. This page outlines the changes.
Best interests of children
The Family Law Act 1975 contains a list of factors that courts are to take into account when determining what parenting arrangements are in the best interests of children. The current Act sets out two primary considerations as well as a list of additional considerations.
Under the changes, the two-tier system of considerations is removed and replaced by six general considerations. The new Act also contains two further considerations that must be taken into account if the court is dealing with a child who is Aboriginal or Torres Strait Islander.
The court must consider:
- what arrangements would promote the safety of the child and of each person with parental responsibility;
- any views expressed by the child
- the developmental, psychological and cultural needs of the child
- the capacity of each person with parental responsibility to provide for those needs
- the benefit to the child of having a relationship with their parents and with other people who are significant to them when it is safe to do so
- anything else that is relevant to the particular circumstances of the child.
If the child is Aboriginal or Torres Strait Islander, the court must also consider:
- their right to enjoy their culture; and
- any impact the proposed orders will have on that right.
Parental responsibility
‘Parental responsibility’ is what a lot of people think of as ‘custody’. It is the legal responsibility for making big-picture decisions about children such as where they live, where they go to school, what religion they are raised in and what medical interventions they receive.
Under the old Family Law Act 1975, there was a presumption that the parents of a child have equal shared parental responsibility. The Family Law Amendment Bill 2023 abolishes this presumption.
Under the new laws, parenting orders may provide for either joint or sole decision-making in relation to major long-term parenting issues.
Enforcement of orders
The new Act simplifies provisions relating to the enforcement of and compliance with parenting orders. It also allows Registrars to make compensatory time orders in situations where orders have been breached for a specific reason. An example of where this may occur is when a parent withholds a child from spending time with another parent because of concerns about the child’s safety in their care at that time. Where this occurs, the court may make a compensatory time order for the child to spend time with the parent after the safety concerns no longer exist. This allows the child and parent to have ‘make-up time’ to compensate for the time that was missed due to the breach.
Information sharing
Under the Family Law (Information Sharing) Bill, courts are empowered to quickly obtain information from the police, child protection departments and firearm agencies about abuse and neglect that may pose a risk to children.
The Bill allows courts to make orders that an information-sharing agency must inform the court of whether it has any information relating to:
- abuse, neglect or family violence that the children have been subjected or exposed to
- family violence to or by a party to the proceedings
- risks of abuse, neglect or family violence to the children
- risks of family violence to or by a party to the proceedings
The court may also order an agency to provide documents relating to any of the above matters.
Reasons for the reforms
The reforms follow recommendations by the Australian Law Reform Commission and the Australian government’s response to the inquiry held by the Joint Select Committee on Australia’s Family Law System. These inquiries both highlighted deficiencies in the family law system including the protections for family violence victims and children at risk as well as lengthy delays being common in family law matters and the unnecessary complexity of the law in some areas.
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