Changes to The Family Law Act-Additional information

Continuing on from the previous article Changes to the Family Law Act; will it affect my parenting case? How have those considerations/factors changed compared to the old law?

Factor 1

When we look at the change to a Factor 1, there is a reference to not only the safety of the child but also the safety of anyone who has the care of the child.  When looking at the safety we also have to look at reading it together with the standalone provision that looks at any relevant current or past family violence orders and the terms of those family violence orders.

Factor 2

In relation to Factor 2, this this has been changed to limit the reference to ‘any views expressed by the child’ without reference to a consideration to ‘any factors (such as the child‘s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child‘s views;’ as provided for in the current Act.

This was in response to a 2019 Law Reform Commission report that effectively found that the insufficient weight was given to a child’s views in family law proceedings, and children were often left child feeling disempowered and not heard.  The purpose of the amendment was to give greater weight to a child’s voice and a right to be heard in family law proceedings. 

Although, a Judge, in exercising his or her discretion, can still consider the ‘other factors’, in the current law when considering what weight to attach to the children’s views.

There are also changes to the Family Law Act to effectively codify the requirements of the Independent Children’s lawyer to meet with the child and to give the child an opportunity to express a view. This is however subject to some exceptions.  The effect of the changes to the Family Law Act will ensure that the child’s voice is a central part of the proceedings, and the child has the ability to feel that they have participated in their proceedings, subject to where it is safe and appropriate to do so.

Factor 3

The inclusion of reference to a consideration of needs and what is ‘developmentally appropriate’ was something that the Court would consider as part of the facts of the case, but it was not as clear in the previous sections.

• The ‘needs of the child’ was a previous factor and including under the older sections of the act that dealt with under the parent’s capacity to meet the child’s needs;
• the nature of the child’s relationship with each of their parents or any person of any significance,
• the existing arrangements and whether it is desirable to change the existing arrangements, likely effect of any change to existing arrangements.
• the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child‘s parents,

Factor 4

The Factor 4 deals with the capacity of the each of the parents/carers to care for the child. This factor is and was always provided for in a number of the previous sections of the current Family Law Act; but now the section is likely to catch all of the other provisions in the current act, that include for example, the capacity the parent’s attitude towards the child and their attitude towards their parental responsibility.

Factor 5

Factor 5 is the consideration that appears to have the most change.  It refers to the benefit of a child having a relationship with the parent or any significant person. It has the removal of the term ‘meaningful’ to avoid potential interpretation issues as to what does meaningful mean.

The intent behind the change to this section is:

• It also ensures the emphasis of the benefit to the child rather than the benefit to parent.
• It is also extended to the benefit of the child having a relationship with other people not just with a parent or person with parental responsibility so it can also include grandparents and or siblings, whilst previously the nature of the relationship with other persons was previously considered.
• The benefit is expressed as being ‘where it is safe to do so’.  Therefore, the consideration of the benefit to the child must be made in the context of a child’s safety. So again, says the priority of the child safety over the benefit of their relationship.
• However, the current act, does as part of the primary considerations, prioritise the need to protect the child from harm or exposure to abuse and/or family violence. Therefore, this is not a new concept, but it is clearer.

Factor 6

Factor 6 is the catch all clause, that ‘anything else that is relevant to the particular circumstances of the child’.  This provision was already in the previous section of the Family Law Act, however, it was previously said any other matter that’s relevant; the new drafting of the new section, simply says relevant to the circumstances of the child.

For more information please contact Nicole Quirk or speak with one of Solari and Stock’s experienced Family Law Solicitors on 02 8525 2700 or click here to request an appointment.

Article by Nicole Quirk
Photo by Kevin Gent on Unsplash