Major changes are on the horizon for family law proceedings, set to take effect on 6 May 2024, with the introduction of new amendments to the Family Law Act 1975. These amendments will alter how family law matters are handled, potentially impacting anyone currently involved in or preparing to engage in family law proceedings. It's crucial to understand these changes and their potential implications as they reshape the landscape of family law in South Australia.
The changes include:
- What a Court must now consider when determining what is in the child's best interests;
- The removal of the presumption of equal shared parental responsibility;
- Requirements for changing final parenting orders;
- The role of an Independent Children's Lawyer and;
- The introduction of harmful proceeding orders.
This article will explore the implications and nuances of each amendment and how they will impact family law proceedings moving forward.
Best interests of the child
Under the Family Law Act, the paramount consideration remains the best interests of the child.
Previously, there was a lengthy list of factors that the Court was to consider when determining the best interests of children. There was also a distinction between "primary" and "additional" considerations.
The new legislation outlines six key factors for Courts to consider:
- Child's safety from harm
- Children's wishes
- Children's developmental, psychological, emotional and cultural needs
- Caregivers' capacity to meet children's needs
- Importance of children's relationships with significant people
- Any other relevant circumstances
These factors are non-hierarchical and provide the Court with the discretion to consider the specific circumstances of each individual case without giving more weight to one factor over the others. Additionally, Courts must consider any history of family violence, abuse or neglect. The new legislation also introduces cultural considerations for Aboriginal and Torres Strait Islander children. This includes considering the child's right to enjoy their culture by having the support and encouragement necessary to connect with and maintain their connection to that culture and the likely impact any proposed parenting order will have on that right.
Parental responsibility and time spent
Previously, the Courts assumed that both parents had equal shared parental responsibility, which sometimes caused confusion. This assumption led some parents to believe that they had equal time with the child, rather than equal decision-making authority for long-term matters (ie. healthcare, religion and education). Following on from this, the updated legislation removes the requirement for Courts to presume equal shared parental responsibility. Now, Courts assess each case individually, considering the child's best interests to determine if joint or sole long-term parenting decisions are appropriate. While equal or substantial time with each parent is still possible, the key factor is what is best for the child.
Changing final Parenting Orders
Parenting Orders aren't always permanent. Parents can seek changes through mutual agreement or Court intervention, depending on the circumstances. When a change is requested, the Court applies the Rice and Asplund rule, which sets a standard for significant changes in circumstances and ensures the proposed change benefits the child.
The inclusion of the Rice and Asplund rule in the amended legislation aims to discourage unnecessary legal disputes and prioritise the child's welfare. If a parent's application meets the criteria outlined in the law, the Court will consider it. This approach ensures that any modifications to parenting orders are made thoughtfully, with careful consideration for the child's best interests and the family's overall well-being.
Independent children's lawyers
In certain circumstances, an Independent Childrens Lawyer (ICL) may represent your child's best interests. Until now, ICLs weren't required to meet with the child they represent. Starting 6 May 2024, all ICLs must meet with the child (pending some exceptions) to provide the child with an opportunity to express their views.
Examples of the exceptions to the requirement to meet are:
- an ICL is not required to meet with a child who is under five years of age;
- a child who does not wish to meet with the ICL or express their views; or
- if the circumstances would expose the child to a risk of psychological or physical harm; or would have a significant adverse effect on the wellbeing of the child (s68LA(5C) of the Act).
This amendment is a further example where the best interests of the child are the paramount consideration in the Family Law Act.
Introduction of "harmful proceedings orders"
The amended legislation introduces a "harmful proceedings order" to prevent an individual from filing any further family law applications in circumstances where they are likely to be harmful to a party or child involved in the proceedings. This can be done either on the Court's own initiative or on application by a party to a proceeding.
The Court will need to be satisfied that there are reasonable grounds to believe that further proceedings would be harmful to the Respondent. This can include psychological harm, severe stress, financial harm, and actions which negatively impacts the other party's ability to care for a child.
Will these changes impact my matter?
Existing parenting orders will stay the same when the new law starts on 6 May, 2024. Anyone with existing orders must follow them as before. Starting 6 May 2024, the changes will affect all new and ongoing cases, except those where the final hearing has already begun.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
