A Glance at New Family Law Changes in 2024

Many family lawyers and litigants or prepared-to-be litigants in the Federal Circuit and Family Court of Australia have heard that there will be significant changes in the family law area in 2024, mostly in the parenting area, but in property, contravention and enforcement areas as well.

To be prepared for a smooth transition to the upcoming changes, this article discusses what family lawyers and litigants need to know about the changes in a hopefully quick way.

Parenting - Best Interests of the Children

The factors to be considered in the best interests of the children (s60cc factors) are replaced by a set of new factors in a simplified way, namely:

1. What arrangements would promote the safety of the child and each person who has care for the child. Any history of family violence, abuse or neglect involving the child or a person caring the child and any family violence order that applies to the child or a member of the child’s family will be considered.

2. Any views expressed by the child;

3. The development, psychological, emotional and cultural needs of the child;

4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5. The benefit to the child being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

6. Anything else that is relevant to the particular circumstances of the child.

Parenting - Parental Responsibility

1. There is no presumption of equal shared parental responsibility (Section 61DA will be omitted).

2. A parenting order may deal with the allocation of responsibility for making decisions about all or specified major long-term issues. When the order requires the party to have joint decision-making on major long-term issues, each parent must consult with other person in relation to each such decision and make a genuine effort to come to a joint decision.

3. When making major long-term issues, the parents are encouraged to consult each other about major long-term issues in relation to the child and in doing so, to have regard to the best interests of the child as the paramount consideration.

   We hold concerns regarding the word “encouraged”. What does the word mean? It may mean nothing to parents who are experiencing high conflicts or high risks. It may also create more confusion than clarity for relatively amicable parents.

Parenting - Variation of Final Parenting Orders

Essentially, the principle in Rice v Asplund (1979) FLC 90-725 is legislated in a new section 65DAAA Reconsideration of final parenting orders. A cout must not reconsider the final parenting order unless:-

1. The court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

2. The court is satisfied that, in all the circumstances (and taking into acccount whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

The court will consider the following factors:-

1. The reasons for the final parenting order and the material on which it was based;

2. Whether there is any material available that was not available to the court that made the final parenting order;

3. The likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, in some other way);

4. Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

Parenting - Contravention of child-related orders

The court may, at any stage of proceedings (and without having to make a finding about the contravention), make any of the following orders:

1. A make-up time parenting order;

2. An order varying or suspending a parenting order;

3. An order requiring the respondent and any other party to the proceedings to attend a post-separation parenting program.

If the court makes a finding on the balance of probabilities that the respondent contravened the child-related order without having a reasonable excuse, the court may order the respondent to enter into a bond.

If the court makes a finding beyond reasonable doubt that the respondent contravened the child-related order without having a reasonable excuse, the court may make an order imposing a fine or a sentence of imprisonment on the respondent.

Parenting - Independent Children’s Lawyer

The independent children’s lawyer must meet with the child and provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate unless:

1. The child is under 5 years of age; or

2. The child does not want to meet with the independent children’s lawyer, or express their views; or

3. There are exceptional circumstances that justify not performing the duty.

Case Management - Harmful proceedings orders

In addition to the Court’s power to make a decree if there is no reasonable prospect of success of one case or proceedings that are frivolous, vexatious or an abuse of process, the court now has the power to make orders that prohibit one party from commencing proceedings against another if the court is satisfied that:

• The other party or the child would suffer harm if the first party instituted further proceedings against the other party.

Harm may include psychological harm or oppression, major mental distress, financial harm and a detrimental effect on the other party’s capacity to care for a child, financial harm.

Duty of Lawyers

A party’s lawyer must:-

• assit the party to comply with the overarching purpose of the family law practice and procedure provisions;

• provide an estimate of the likely duration of the proceedings or part of the proceedings;

• the likely amount of costs that the party will have to pay in connection with the proceedings or part of the proceedings (including the costs that the lawyer will charge to the party).

Restriction on Communication of Accounts and Lists of Proceedings

The old section 121 is repealed.

A person commits an indictable offence if the person communicates to the public an account identifies a party or a witness to/in or related to the proceedings. Breach of the requirement could lead to 1-year imprisonment.

The legislation clarifies that none of the following is a communication to the public:-

• a private communication between a party to proceedings and one or more persons who are members of the party’s family or frineds of the party;

Key Takeaways of the Upcoming New Changes

1. Family lawyers may need to update their parenting affidavit regarding the s60cc factors;

2. There is no presumption of equal shared parental responsibility;

3. The court places more weight on a child’s view;

4. The court may make a make-up time parenting order in child-related contravention cases;

5. Parties need to be mindful of communicating family law proceedings on social media that may reveal a person or a witness’ identity. Breach of this obligation could lead to 1 year imprisonment.

Reference

Family Law Amendment Bill 2023 No. 87 , 2023

https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r7011_aspassed/toc_pdf/23043b01.pdf;fileType=application%2Fpdf