This week, two pieces of legislation were passed by the Federal Government: The Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023.
The changes include new laws about how the Courts will make parenting orders in the best interests of a child. Here’s what the changes are, when they come into effect, and how it will impact single mothers going through the Court system.
Family Law Amendment Act 2023
These changes relate to parenting matters and will not affect financial only proceedings.
The legislation sets out new laws about:
- what the Courts must consider when determining what is in the child’s best interests, and
- how separated parents are to make decisions about long-term issues for their children.
Here’s a fact sheet for parents: Family Law Amendment Act 2023: Factsheet for parents
The changes may affect people who:
- have a current parenting matter before the Courts (that won’t be finalised before 6 May 2024), or
- are trying to determine the right parenting arrangement for their child/ren.
The new laws will make changes to the law about parenting arrangements, including:
- introducing a shorter list of factors for the Courts to consider when deciding whether parenting arrangements are in the best interests of children
- introducing new sections about decision making about major long-term issues
- removing the presumption of equal shared responsibility
There are a number of other changes, which include:
- expanding the definitions of ‘relative’ and ‘member of the family’ to include Aboriginal and Torres Strait Islander concepts of family;
- a requirement for Independent Children’s Lawyers to meet directly with children if they are over five years old, unless the child does not wish to meet with the Independent Children’s Lawyer or there are other exceptional circumstances;
- amended compliance and enforcement provisions for child-related orders, which impact applications such as Contravention Applications;
- new powers for the Courts to prevent harmful litigation, including the power to make harmful proceedings orders.
Family Law Amendment (Information Sharing) Act 2023
This legislation amends the Family Law Act to give effect to key parts of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. It enhances the sharing of child abuse, neglect, and family violence risk information between the Courts, child welfare agencies and police.
The Family Law Amendment (Information Sharing) Act 2023:
- repeals section 69ZW of the Family Law Act and introduces new Subdivision DA in Part VII of the Family Law Act, which deals with sharing information relating to family violence, child abuse and neglect in child-related proceedings
- introduces a new order for particulars of documents or information held by information sharing agencies (state and territory child protection, police and firearms agencies and the Australian Federal Police for the Australian Capital Territory)
- introduces a broadened order for the Courts to require information sharing agencies to produce documents or information
- introduces a new category of protected information that is not required to be shared by information sharing agencies
- includes provisions about the admission of relevant shared information in proceedings, and instances where otherwise protected material can be shared and disclosed
- protects against the disclosure of information that identifies a notifier of suspected family violence or child abuse (except in limited circumstances)
- introduces a requirement for parties to seek the Court’s permission to issue a subpoena to an information sharing agency that has been ordered to produce documents or information
- empowers the prescription of additional information sharing safeguards
When do the changes start?
Most of the changes will come into effect on Monday 6 May 2024. In the majority of cases, from this date, these changes will apply to all new and existing parenting proceedings, except where the final hearing has already begun. Some of the changes will apply even where a final hearing has already begun.
Practical considerations
Parents who are preparing to file an application in the Court that will be affected by these changes (such as an application for parenting orders or a contravention application) should carefully consider the timing of their application and the laws that will apply to finalise that application.
Parents who have a current proceeding in either Court should carefully consider the timing of the next hearing in the matter. If the next hearing is after 6 May 2024, and based on an assessment of the relevant application provisions, the new law will apply to the proceeding, practitioners and parties should ensure the submissions filed or made, and the orders sought, are in accordance with the new law.
For example, if you filed an application on 1 March 2024, and it is listed for an interim hearing on 8 May 2024, the new laws will apply to the interim hearing.
Even if you have decided to make your application without the help of a lawyer, you should obtain independent legal advice about the effect and consequences of the orders you propose. You can get legal advice from a legal aid office, community legal centre, or private law firm.
Applications for consent orders
If, after 6 May 2024, the Court is considering an Application for consent orders that includes parenting orders, the new laws will apply even if the application was filed before 6 May 2024. Orders cannot be made if they do not meet the criteria in the new provisions.
Parents filing a parenting related application should consider the new laws commencing on 6 May 2024 in deciding when to file their Application for consent orders with the Court. It generally takes approximately two weeks for the court to make Consent Orders after an Application for consent orders is filed.
