When it was first enacted by the Australian parliament to commence in 1975, the Family Law Act was a whole different way of looking at how the rights of each party to a marriage should be determined.
The prior legislation was unconstructive and took into account who was at fault for the breakdown of the relationship. Such an approach did not help parties to a marriage move on and was understandably not a positive approach for their children.
From 1975 the concept of fault was gone and all our clients needed to consider was whether or not there had been a breakdown in the relationship, regardless of who was responsible for that circumstance.
Although changes to the legislation have occurred since that time (including acknowledging that superannuation could be the subject of Orders) what might have been regarded as a major change occurred in 2006.
In 2006, the amendments to the Family Law Act provided that parents are presumed to have equal shared parental responsibility for the care of their children. This meant 2 things:-
- If it applied then parents needed to confer when making decisions about their children as to important things in their children’s lives such as health, religion and education, amongst other things.
- If the Court found that equal shared parental responsibility applied to a family, then the Court must also consider Orders that each parent was to have significant and substantial time or equal time.
Those changes meant that the parent who had not had the major care of the children tended to be granted more time and we saw the Courts granting a non-resident parent not just every second weekend but what in effect was 5 nights per fortnight and sometimes more including a shared care arrangement.
In May 2024, there was a further major change to the Family Law Act. Although perhaps not noticed by many, the May 2024 changes involved the Court making parenting orders that were to be “safe” for children.
In the May 2024 changes, the presumption that the Court must consider an arrangement whereby the children spend substantial and significant time or equal time with their parents was gone.
When changes such as this are made to the Family Law Act it takes a little while before we can tell how the Courts will interpret the new laws and what it will mean for our clients.
We need to see cases decided under the new legislation and then as often happens with changes that are as significant as this, a Judge’s decision once made may be the subject of an appeal to the Full Court of the Family Court (now known as the FCFCOA).
The Full Court (which comprises 3 Judges not just one) will then give further guidance as to the interpretation of these 2024 amendments.
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If you or someone you know requires assistance with a family law matter, contact one of our family law lawyers on 9635 7966 or through any one of the ‘contact us’ options on this website
