The Family Law Amendment Act 2023 (Cth): A summary of the changes which will commence on 6 May 2024

The Family Law Amendment Act 2024 (Cth) (FLAA) comes into effect on 6 May 2024. The new Act introduces a range of changes, most of which are centred around parenting, with the bulk of the Amendments to Part VII, Family Law Act 1975 (Cth) (FLA).

The purpose of the amendments is to make the family law system safer and simpler, and to ensure that the best interests of children are central to the system. There is no grace period, meaning that from 6 May 2024, the amendments will apply to all new and existing parenting proceedings, except where the final hearing has already begun.

The substantive provisions

The FLAA makes a range of substantive changes to the  FLA, as well as other related legislation by:

• amending the Objects of Part VII, FLA contained in s 60B, FLA reducing them to two Objects which are:
  • to ensure that the best interests of children are met, including by ensuring their safety; and
  • to give effect to the Convention on the Rights of the Child done in New York on 20 November 1989.
• amending the provisions for how the court determines what is in the best interests of the child by repealing the current s 60CC, FLA and substituting a new s 60CC, FLAA which refines the list of ‘best interests’ factors to:
  • what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child);
  • any views expressed by the child;
  • the developmental, psychological, emotional and cultural needs of the child;
  • 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;
  • the benefit to the child of 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;
  • any other relevant considerations.
• In addition, under the new s 60CC, the court must include consideration of:
  • any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
  • any family violence order that applies or has applied to the child or a member of the child's family.
• If the child is Aboriginal or Torres Strait Islander culture, the court must also consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity, and encouragement necessary:
  • to connect with, and maintain their connection with, members of their family and with their community, culture, country, and language,
  • explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
  • to develop a positive appreciation of that culture;
• repealing provisions about the presumption of equal shared parental responsibility as well as the related equal time and substantial and significant time provisions by repealing ss 61DA and 61DB, as well as ss 65DAA, 65DAC and 65DAE, FLA;
• clarifying the circumstances in which a court can vary an existing parenting order giving effect to the rule in Rice v Asplund;
• redrafting and simplifying provisions relating to compliance with, and enforcement of, parenting orders by providing:
  • s 70NAA, FLAA: provides a simplified outline of Div 13A;
  • s 70NAB, FLAA : outlines the objects of Div 13A;
  • s 70NAC, FLAA: outlines the meaning of to “contravene” an order;
  • s 70NAD, FLAA: Provides the meaning of “reasonable excuse” for contravening a child- related order;
  • s 70NAE, FLAA: Provides the burden of proof to be applied in determining matters in proceedings;
  • s 70NBA, FLAA: Outlines when orders can be made under the Division;
  • s 70NBB, FLAA: provides that the court may make a make-up time parenting order at any time and delegates the power to make make-up time parenting orders to registrars;
  • s 70NBC, FLAA: provides that the court may vary or suspend a parenting order at any time;
  • s 70NBD, FLAA: provides that the court may require one or more parties to attend a post-separation parenting program, or other specified program;
  • s 70NBF, FLAA: outlines the orders the court can make where a contravention is established without a reasonable excuse;
  • s 70NCA, FLAA: provides conditions for the court to require a person to enter into a bond;
  • s 70NCB, FLAA: outlines the procedure for the court to enforce a bond;
  • s 70NCC, FLAA: provides conditions for the court to make an order imposing a sentence of imprisonment;
  • s 70NCD, FLAA: outlines the powers of court in relation to the imprisoned person, including release and suspension of sentence;
  • s 70NCE, FLAA: outlines the rules relating to contravention of child maintenance orders and child support;
  • s 70NDA, FLAA: outlines the circumstances where the court may issue a warrant for the arrest of an alleged offender;
  • s 70NDB, FLAA: Outlines the relationship between Div 13A, FLA and other laws;
• amending definitions relating to the concept of ‘family’ to be more inclusive of Aboriginal and Torres Strait Islander culture and traditions by including a new subsection in s 4(1AC), FLAA that if a person is related to an Aboriginal or Torres Strait Islander child in accordance with the child’s Aboriginal or Torres Strait Islander culture (including but not limited to any kinship systems of that culture), the person is a relative of the child.;
• removing the current limitation on the appointment of an Independent Children’s Lawyer (ICL) in Hague Convention matters by repealing subsections 68L(5) and (6), FLA;
• inserting a new s 68L(5A), FLAA, which requires ICLs to meet with a child and give them an opportunity to express a view, unless:
  • the child is under 5 years of age; or
  • the child does not want to meet with the independent children’s lawyer, or express their views (as the case requires); or
  • there are exceptional circumstances that justify not performing the duty.;
• enabling standards and requirements to be prescribed for professionals who prepare family reports;
• delegating to registrars of the Federal Circuit and Family Court of Australia (FCFCOA) the power to impose a make-up time parent order in contravention proceedings;
• providing that a judge of the Family Court of Western Australia can be dually appointed as a judge of Division 1 of the FCFCOA;
• inserting a new Division 1B into Part XIB, FLAA  introducing ‘harmful proceedings orders’ to protect parties and children from the effects of drawn-out litigation;
• extending the ‘Overarching purpose of family law practice and procedure’ and the accompanying duty to all proceedings instituted under the FLA by inserting s 95, FLAA. Section 96, FLAA then requires parties and lawyers to act in accordance with the Overarching purpose.

In addition, to the FLAA, the Family Law (Information Sharing) Act 2023 (Cth) will also commence on 6 May 2024. This Act also makes major changes to the FLA by establishing new information-sharing orders to allow courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect which can be made at any time during proceedings.

Learn more in our range of new Tools in LexisNexis® Practical Guidance Family.

You will need a subscription to access these Tools:

• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to the parenting framework in Part VII, Family Law Act 1975 (Cth)
• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to the provisions for the enforcement of child-related orders
• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to the role of Independent Children’s Lawyers
• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to case management provisions — harmful proceedings and the overarching purpose
• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to provisions relating to the communication of details of family law proceedings
• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to the definition of “family”
• Tool: The Family Law (Amendment) Act 2023 (Cth): Amendments to provisions relating to family report writers

For the historical context of the Amendments to the FLA, see:

• Australian Law Reform Commission (ALRC) 2019 report Family Law for the Future: An Inquiry into the Family Law System (ALRC Report 135);
• Government response to the ALRC report, dated 21 March 2021;
• Joint Select Committee on Australia's Family Law System reports:
  • Interim Report (December 2020)
  • Second Interim Report (March 2021)
  • Third Interim Report (on Australia’s Child Support scheme) (November 2021)
  • Final Report, November 2021.
• Parliament of Australia Family Law Amendment Bill 2023

The Federal Attorney General has also published useful resources on the changes to the FLA, for both family law practitioners and for parents.

Learn more from the LexisNexis^® Practical Guidance Family Law module here.