Navigating the New Pathway for Parenting Matters: Understanding the Family Law Amendment
The law relating to how courts order parenting arrangements is about to undergo a major overhaul when on 6th of May 2024, a new legislated bill becomes law. At Rowan Skinner & Associates Lawyers, we are accredited specialists in family law and specialist child custody lawyers. We can help you navigate the new changes to parenting law, which are in fact the most significant changes to the Family Law Act in the last 20 years. It is important to understand that the law will remove a number of significant concepts from the act.
The new Amendment is a simplified and safer approach that aims to fortify the legislation and system surrounding family law matters. With an overarching purpose of protecting families and children, this amendment endeavours to ensure the best interests of the child are promoted promptly, inexpensively, and efficiently.
Key Changes Unveiled:
Terminology Shifts:
The Amendment is ushering in a new era by simplifying language and promoting inclusivity. Terms like ‘meaningful relationships’ and ‘substantial and significant time’ are being replaced to avoid potential misinterpretation. Moreover, terms such as ’members of the family’ and ‘relative’ have been altered to better align with the diverse cultural landscape, especially that of Aboriginal and Torres Strait Islander communities whereby broadening this definition adequately recognizes diversity of family structures within these cultural groups. It is a step towards ensuring everyone feels represented and understood within the legal framework.
Refocused Considerations:
The new Amendment allows courts to have the discretion to consider the unique circumstances in each parenting matter against a six criteria list with just a flat hierarchy. The previous law avows that both child’s safety and their relationship with their parents are to be the primary considerations – however this current hierarchy of primary considerations and additional considerations has been removed. The set of six key factors that the courts will now weigh each case against include:
- Safety: Prioritizing arrangements that ensure the safety and well-being of the child, with a special emphasis on addressing historical family violence.
- Child’s Views: Actively considering the perspectives and preferences of the child, ensuring their voice is heard and respected throughout the process. The current approach in Australian Law has been observed as being one where the focus has been more on protection of children, treating children as objects of law rather than rights holders.
- Developmental, Psychological, Emotional, and Cultural Needs: Recognizing and accommodating the diverse needs of the child, spanning their growth, mental well-being, emotional health, and cultural identity.
- Parental Capacity: Assessing the ability of each parent (or guardian) to meet the developmental, psychological, emotional, and cultural needs of the child.
- Benefit of Relationships: Evaluating the benefits to the child of maintaining relationships not only with parents but also with other significant individuals in their life, such as grandparents, siblings, and extended family members.
- Relevant Circumstances: Taking into account any other factors pertinent to the specific circumstances of the child and their family situation.
This approach ensures that decisions are made with a comprehensive understanding of the family’s dynamics and the unique needs of the child involved. In a recent seminar given by Rebecca Mills from the Attorney-General’s Department, it is suggested that the new Amendment is about moving away from a hierarchal method of determination and instead embracing a more nuanced and adaptable approach to family law.
Rights of Indigenous Children:
The amendment places a spotlight on the cultural heritage of Aboriginal and Torres Strait Islander children, affirming their right to explore and celebrate their heritage. By emphasizing the importance of cultural identity, this standalone law seeks to preserve and nurture Indigenous cultures for generations to come.
Presumption Repealed:
There will be no legislated presumption upon what is best for the child based on previous notions. The court will no longer presume that it is in the child’s best interests for parents to have equal shared parental responsibility, particularly to make joint decisions in relation to major long-term issues. Instead, the amendment prioritizes the child’s best interests above all else, ensuring that decisions regarding equal parental responsibility are made with their welfare as the paramount consideration. However, it is noted that on major long-term issues, legislations require parties to consult with each other and make genuine effort to come to a joint decision
Flexible Time Arrangements:
As mentioned above, courts are no longer bound by the presumption of equal shared parental responsibility, opening the door to more flexible time arrangements. This means that there will be a new starting point in mediation upon the time arrangements, as instead it will be tailored to the specific needs and circumstances of each family, rather than adhering to a one-size-fits-all model. Questions such as “why not 50/50 split?” that are typically discussed from the start may not be applicable if this situation does not work in the best interest of the child.
Adviser Obligations Revamped:
Advisers now have a renewed focus on prioritizing the best interests of the child in every decision. By removing the obligation for advisers to draw distinctions between primary and secondary characteristics to consider, advisers can offer more tailored guidance that reflects the unique needs of each family. It is important to note that advisers will also not have any obligation to recommend parents to consider the possibility of the child spending equal time with parents.
Clarity on Reconsideration:
With clear guidelines in place, courts can only now reconsider final parenting orders in light of significant changes in circumstances or if a reconsideration is ultimately in the best interests of the child – much enshrines the common Law principle set in Rice v Asplund.
We enclose the link to the relevant legislation: https://www.legislation.gov.au/C2023A00087/latest/text
Rowan Skinner & Associates Lawyers stand ready to guide you through these transformative legislative amendments. Our expertise ensures your understanding of the evolving landscape and empowers you to make informed decisions for your family’s future.
As the Family Law Amendment Act heralds a new era in parenting matters, it is imperative to seek guidance from accredited family law specialists. Together, let us navigate this new pathway with confidence and clarity, ensuring the best outcomes for you and your loved ones. If you want to discuss your parenting matter through these new amendments with an expert Melbourne Family Lawyer, please contact Rowan Skinner at our office on 9995 9155. We also service clients in Melbourne and the Northern Suburbs, such as Northcote, Alphington, Carlton, Fitzroy, North Fitzroy, Kew, Thornbury and Heidelberg.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.
