Update – November 2024
This is an update to the below article which we published earlier in 2024. The Federal Circuit and Family Court of Australia have now published some cases that consider the new test about whether an Application to Vary parenting orders should be allowed to proceed.
The Court has held that the new provision (section 65DAAA of the Family Law Act 1975) is materially different to the previous common law rule in the case of Rice v Asplund.
As we correctly anticipated (see our original comments below), the Court has confirmed the new provision only requires the Court to “consider” whether there has been a significant change in circumstances since the previous parenting orders were made – it is not required to find that there has been a significant change in circumstances and so may decide to vary the orders whether or not there has been such change, provided it is satisfied that that it is in the best interests of the child or children to do so.
Original Article
Brief Summary
Under the current law, there is a presumption that parents should have equal shared parental responsibility unless there has been abuse or family violence.
Changes coming into effect on 6 May 2024 mean the courts will no longer apply the presumption. Instead, in all cases the courts will only make orders for shared parental responsibility if satisfied it is in the child’s best interests in all circumstances of the case.
Additionally, the Family Law Act 1975 will now include a provision which sets out what a court must consider when being asked to vary an existing Final Parenting Order.
More detail follows.
Background
The Family Law Amendment Act 2023 will introduce significant changes to the presumption of equal shared parental responsibility that currently exists under Section 61DA of the Family Law Act.
This Act also puts into statute existing rules developed in family law cases about when a party can apply to the family courts to vary existing Parenting Orders.
These changes will come into effect on 6 May 2024.
Current Law – Presumption of Shared Parental Responsibility
Under the current law, there is a presumption that parents should have equal shared parental responsibility. This presumption applies unless there is reasonable grounds to believe there has been abuse or family violence towards the child.
What is Parental Responsibility?
Parental responsibility refers to the duties, powers, responsibilities, and authority that, by law, parents have in relation to their children. It includes making decisions about their care, welfare, and development, and maintaining their overall wellbeing.
In a Family Law context, it often relates to making decisions about the major aspects of a child’s upbringing – for example, where they go to school, what culture and religion they are raised in, where they live and so forth.
It is not to be confused with day-to-day decisions, which typically each parent with care of a child make when that child is in their care – for example, what breakfast they eat.
What’s Changing?
The Family Law Amendment Act 2023 changes the starting point for the court. Instead of automatically assuming parents should share responsibilities equally, the court will now focus on what is best for the child, considering all the details of the situation. These circumstances range from safety considerations, the rights of Aboriginal or Torres Strait islander children to connect with their family, culture and heritage, the capacity of each parent to meet the child’s needs, and in situations where a parent does not have an existing relationship with a child.
Changes to Application to Vary Parental Orders
In addition, the Family Law Amendment Act 2023 also adds new provisions into the Family Law Act which state the court must not reconsider (or vary) the final parenting order unless
a. The court has considered whether there has been a significant change of circumstances; and
b. The court is satisfied it is in the best interests of the child for the final parenting order to be reconsidered.
This differs from the previous rules which originally come from the case of Rice v Asplund which required a party to demonstrate to the court there has been a significant change in circumstances, since the orders were made, in order to vary an existing parenting order.
The changes to the law mean that, instead, the court determines an application to vary by applying the Act (instead of the rule in Rice v Asplund) and the court need only “consider” whether there has been a significant change circumstances, but can still vary the orders regardless, so long as it’s in the child’s best interests to do so.
The court can also vary final parenting orders if the parties all agree it should do so.