On May 6th changes to Australia’s Family Law Amendment Act 2023 came into effect after being passed by parliament last autumn. From now on, the law changes will apply to all new and existing parenting proceedings, except from those where the final hearing has already begun. Step-parents may now be considered ‘family’ as a broadening of terminology will take into account non blood relatives and kinships.
The new act will follow a parenting framework that will determine what is in the child’s best interests post divorce or separation, and how separated parents are to make decisions about long-term issues for their children. This will be inclusive of factors such as abuse, neglect and even the personal view of the child.
Backtracking on a 2006 family law that critics have deemed ‘rigid’, the new amendment removes the existing presumption that it is in the best interest of the child for parents to make joint decisions regarding the child’s long term commitments. By removing this presumption, the Amendment Act enables that parental responsibility will be based solemnly on the best interest of the child, in each individual circumstance and matter.
Similar to UK family proceedings, the Australian Family Law Amendment Bill 2023 is at the forefront of these changes, proposing vital amendments to the Family Law Act 1975. One notable change is the repeal of the presumption of equal shared parental responsibility.
Another change includes the expansion of the terminology to include a verity of members of the family that have previously not been considered. Widening the interpretation now enables step parents, the scope of domestic violence and cultural considerations such as kinships to now be considered and valued. The amendment creates a new requirement that children are to meet with an Independent Children’s Lawyer (ICL) to reflect the child’s best interest. The ICL will act to articulate the views of the child to ensure they are fully represented and considered before the court.
Australia’s diverse culture will also be taken into consideration and the particulars of different social/minority groups, including Australian Aboriginals. If the court is making orders about an Aboriginal or Torres Strait Islander child, the court will also consider how parenting arrangements will help that child to experience their unique heritage and culture.
Like the UK, Australia has taken on a ‘welfare of the child’ approach to family law proceedings, which will ensure the safety and happiness of minors by considering a multi-layered set of circumstances. Removal of children in the UK and Australia will take into account personal surroundings, culture and upbringing and will work to rehabilitate parents instead of seeking to remove the child as a first line response.
Like England, parents in Australia do not have to have an order dealing with the arrangements for their children and so court applications or orders are only required when parents cannot agree.
