The Different Aspects of Family Law explained

Family Law Amendment Act 2024 (Cth) (FLAA)

On 6th May 2024 the Family Law Amendment Act 2024 (Cth) (FLAA) came into effect. Its objective, to improve the outcomes for Australians that are separating, by making the process simpler, safer and more accessible. Children’s welfare and rights have received the most attention and this is where most of the changes to the Family Law Act 1975 have been amended.

Why Have Changes Been Made to the Family Law Act?

Aside from the major consideration of facilitating a process that will promote the protection and welfare of children, these changes are implemented to reduce the cost and increase efficiency of the courts when dealing with these matters.

What Are The Major Changes Under the Bill?

The main objectives under the Amendment Bill, are to simplify and facilitate the best interests of children. The desired outcome is that it should be easier to navigate and implement parenting decisions whether they be in or out of the court. To further drive the implementation of changes towards children’s welfare, the presumption from the provisions of the Family Law Act of 1975 of “equal shared parental responsibility” do not necessarily follow, as they improperly exposed the children to risk and compromised safety.
In order to prioritize the safety of children, courts under the new information sharing orders have direct and more timely access to information from police, child protection and firearms agencies on matters that could place children at risk.

What Are the Impacts on Children Under the Family Law Amendment Act 2024?

Where children are involved, parties should know that parenting arrangements are expected to be more clearly specified about meeting the interests of the children in the here and now and with respect to major long term decisions.

What Are the “Best Interests of the Child?”

The court considers 6 factors to decide what will be in the best interests of a child. In no particular order, these are,

the safety of the child and people who care for the child (including any history of family violence and family violence orders)
the child’s views
the developmental, psychological, emotional and cultural needs of the child
the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs
the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings)
anything else that is relevant to the particular circumstances of the child.

So, these 6 factors are spoken to under the amendment to section 60CC “Simplification of best interests factors” and will be scrutinized in the event that a determination needs to be made by the court for a parenting order. The presumption that parents are entitled to equal time with a child is incorrect and has never applied under the Family Law Act in Australia.

Current parenting orders will not be changed and compliance to those orders should continue. When they separate, both parents have parental responsibility and duty to provide financial support for any child under 18 – subject to any court order.

Who is most likely to win a custody battle?

We believe that the preferred position is not one of conflict but a reasoned and co-operative approach that serves the interests of the child. In matters of divorce, competition or revenge will rarely lead to success for either party. Having said this, there may be unique circumstances that call for decisive action. In any event, you would be wise to seek a consultation rather than wait for an unexpected trigger or allow yourself to linger in the dark. Let’s face it, you are quite possibly be in the wrong headspace to deal with such deeply personal matters alone or to allow such complicated and detailed issues in the hands of fate or the other parties solicitor. For the sake of your child and your own peace of mind, feel welcome to contact our offices now to help you get to the light at the end of the tunnel by better understanding the process, your rights and the obligations you will face.

Custody and Access to Children

Ideally both parents would be in harmony on such matters. Custody of a child is also referred to as a parenting arrangement. Where such arrangements cannot be agreed upon, the court will formulate a decision on the basis of the best interests of the child, their right to be protected from harm and their ability to enjoy a meaningful relationship with both of their parents.

Do family courts favour mothers? Can Dad’s go for full custody?

The objectives of the Family Law Act are not essentially different from that of any parent inasmuch as it concerns itself with the welfare of the child. In addition to the elements described in the paragraph above, decisions of the court are also guided by the child’s exposure to impacts brought about by changes to environment, care arrangements, the child’s relationships with the adults involved in their life which may go beyond the biological parents to include of grandparents, stepparents and siblings, the child’s express wishes and each parent’s ability to provide for the needs of the child at an emotional and intellectual level. The court does not make it’s decision on the parent’s gender, so it does not automatically rule in favour of mothers or fathers. It will however be influenced by the role of the primary carer and practical considerations such as involvement in decision making, religion and culture.

Who has more rights over a child?

Isn't Child Support and Child Maintenance the same thing?

Child support is applicable to children under 18. You can refer to Services Australia to determine via the Basic Formula (child support calculator Centrelink) to determine the contribution required of each spouse. Parties are not compelled to use this formula but if they do not establish Child Support via Services Australia, then both parents must have set out an agreement between themselves. Where a child is over 18 and has a need for care owing to illness or disability or to complete schooling, then support must be provided in the form of child maintenance. If a parent refuses to agree to child support or maintenance the appropriate course of action would be to get in touch with an accredited Family Dispute Resolution practitioner.

What do judges look for in child custody cases Australia?

Is 50/50 custody the best for a child?

Where a child is involved there will be a whole raft of questions which will probably raise many questions such as these. We will touch on the major areas in an attempt to give you a sense of the facts and issues parents need to address when dealing with separation and divorce.

Forms of Child Custody

In the past, some terms such as child custody, contact arrangements, sole custody, joint custody and shared custody were used to describe different forms of parenting arrangements. These terms are no longer used under the Australian Family Law Act.

What is a Parenting Arrangement?

Parenting Arrangements are used to describe how the child will spend their time and living arrangements with their parents. There are no specific rules to these arrangements are set out, they can take the form of,

1) a verbal agreement or

2) an agreement set out in writing between the parties which may then be described as a parenting plan or

3) a parenting order via the court. Applicants can be either parent, grandparent or any other person concerned with the care, welfare or development of the child. In these instances the outcome may be,

a) A consent order is a parenting plan made by the court with the consent of the parties or

b) in the event that parties cannot agree to a parenting plan, a parenting order may also be issued by way of court decision. These orders carry the force and effect of a court hearing.

How do I make a Parenting Arrangement?

You may well ask what are the best parenting plans for my child? We would suggest that you start by considering how to establish the best parenting arrangements for your child by working out how to have their welfare including economic, emotional and intellectual needs catered for, to allow the child to have meaningful relationships with both parents, for the child to be able to voice to their own needs and desires and the creation of a safe and stable environment(s) which includes but is not restricted to living arrangements. Prudence would suggest that this is all documented in a parenting plan. With this is mind, you may wish to map out where, how and with whom the child will spend their time factoring in schooling, extracurricular activities, religion, weekends and parental time. In an ideal world and in the interests of the child this could be amicably established between the parents. Regardless of how noble parties may be, the considerations are many and varied so coming to a mutually agreed position may not be as straightforward as one may hope to expect.

Do I need a lawyer for parenting plan?

You are not compelled to use a lawyer for a parenting plan. However to help arrive an equitable and just set of agreements it may be helpful to have an external party mediate proceedings to minimise the emotional factors and matters that may give rise to conflict. There are many Government resources available to assist and support in such troubled times and of course, you are welcome to contact us to guide you through the legal issues on all things to do with family law.

Do I Need A Lawyer To Get Spousal Maintenance?

You do not need a lawyer to file for spousal maintenance, financial agreements or consent orders.

Where parties cannot agree of spousal maintenance

They need to have met the criteria required of couples to have attempted to resolve matters between themselves using dispute resolution and mediation. They then need to be able to supply clear records and documentation before making applications to court. So, given the extent of information and complexity involved you may well be better served to seek legal advice from professionals that have experience and knowledge that will alleviate the stress and help avoid bewilderment.

Spousal Maintenance

The Family Law Act 1975 requires that where a spouse or defacto partner cannot support themselves whether during the course of the marriage or even after separation or divorce, the other partner has a responsibility to render financial assistance.

Divorce nor separation are not necessary before you to seek spousal maintenance

Many may not realise that the Court can be asked to make an order for spousal maintenance even if you are not divorced or separated.

For the the court to decide, consideration will be given to the needs of the applicant and the other parties capacity to pay. It will then review each parties,

age and health
income, property, and financial resources
ability to work
appropriate living standard, and
impact that the marriage has had on ability to earn an income.

Although child support and child maintenance are separate from spousal maintenance the court will factor in which parent has children under 18 years of age and if over 18 years children with disability residing with them.

Aspects of the Family Law Act and the safeguard and well being of children

How does the Court determine a child’s best interests?

Section 60CC of the Family Law Act 1975 (Cth) establishes two primary considerations that a Court must take into account in determining what is in a child’s best interests. Both are as important as each other. It is of benefit to a child to have “a meaningful relationship with both parents”, however as equally important is the notion that it is imperative that a child is protected “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

This is reflected in Division 12A of the Act that sets out principles for conducting child-related proceedings in the Court. These principles focus on the needs of the child/ren and the impact that proceedings may have the child/ren.

What is the Court’s view on the interests of child/ren?

The Court’s task is to remain actively involved and to manage the proceedings to ensure that the child/ren are safeguarded “from being subjected to, or exposed to abuse, neglect, or family violence and safeguard parties from family violence”.

I don’t want my child to be subjected to any more stress or disruption.

To this end, it is the Court’s responsibility to conduct children’s proceedings without undue delay, and as little formality, legal technicality and form as possible. This is aided by the rules of Evidence in respect of Children’s proceedings, as Division 12A has removed technical objections that used to apply to the admissibility of evidence in court proceedings, particularly in the early stages of those proceedings. In addition, the Court has now established a Family Safety Risk Screening Process to allow for the effective case management of parties or children at risk.

Must I follow these Court procedures?

Even though, the Court has gone to great lengths to put procedures in place to protect children and parties from family violence, the Pre-action Procedures (Schedule 1 of the Family Law Rules) requires parents to take genuine steps where possible to resolve parenting disputes before commencing parenting proceedings in the Court. Usually a Section 60I certificate must be issued by a Family Dispute Resolution Practitioner before a parent can file an Application in the Court.

What are the documents referred to in Family Law?

If the Court is satisfied that there are reasonable grounds to believe that a child has been abused or is at risk of abuse or there has been family violence or risk of family violence, then a party may file an Affidavit – Non Filing of a Family Dispute Resolution Certificate, a Genuine Steps Certificate indicating what genuine steps were taken in an attempt to resolve differences, a Notice of Child Abuse, Family Violence or Risk, a Parenting Questionnaire, an Undertaking as to Disclosure as well as an Initiating Application, Application in a Proceeding, if necessary and Affidavit.

It can be very overwhelming, not only for the parent who institutes proceedings, but also for the child/ren. Our view, is notwithstanding that family violence may be an issue (and that is not in any way meant to minimise the impact of violence on families), filing in Court may only lead to the parties becoming further entrenched in “the battle” and the child/ren suffering as a result of the very process of Court itself. It is possible to put safety measures in place to protect parents and children.

Are there other experts or channels I can go to in a child care matter?

There are a number of options available. It is possible to appoint a single expert, such as a child psychologist, psychiatrist, or social worker or FDRP to work with the family to resolve parenting issues or at the very least narrow issues in dispute. If agreement is reached, parents can enter into consent orders (or a parenting plan which are filed in the Court and provide certainty for the parents and children moving forward.

If parents are still unable to resolve their differences with the assistance of an expert, it is then open to a parent to file an Application in the Court seeking the assistance of the Court to resolve the dispute. Once a party files, the Court will make inquiries as to whether the parents have made a genuine attempt to resolve parenting issues unless a genuine exception applies, and the parties may be required to participate in Dispute Resolution prior to an Interim Hearing.

Dispute Resolution may take place electronically or in what is known as “shuttle mediations” where the parties are placed in separate rooms away from each other. Throughout the whole process, it is imperative that parents have sound legal advice not only in respect of the process, but also their obligations and responsibilities under the Act, with a view to ensuring that the children are protected at all times from harm or the risk of harm, as are parents. Please speak with us, as to how best we may progress your matter in a way that protects both you and your child/ren from harm.