The Family Law Amendment Act 2023 made significant structural changes to the Family Law Act 1975. The core principle—that the child’s best interests are the paramount consideration—remains unchanged. The amendments primarily affect how that determination is made and how parental responsibility is defined.

1. Abolition of the Equal Shared Parental Responsibility (ESPR) Presumption

The previous presumption that it was in the child’s best interests for parents to have Equal Shared Parental Responsibility (ESPR) is abolished.

• New Terminology: The focus shifts entirely to decision-making:
  • ESPR is replaced by Joint decision-making about major long-term issues.
  • Sole Parental Responsibility is replaced by Sole decision-making.

2. Consolidated Best Interests Factors

The former two-tier system of ‘primary’ and ‘additional’ considerations is replaced by a consolidated, non-hierarchical list of six mandatory factors the court must consider:

1. Safety of the child and caregivers (including any history of family violence and protection orders).
2. The child’s views.
3. The child’s developmental, psychological, emotional, and cultural needs.
4. The capacity of each caregiver to provide for those needs.
5. The benefit of the child having a relationship with their parents and other significant people (e.g., grandparents, siblings).
6. Any other relevant circumstance of the child.

3. Focus on Indigenous Children

If a child is Aboriginal or Torres Strait Islander, the court must also consider the child’s right to enjoy and develop their culture, and the likely impact of the proposed orders on that right.

4. Reconsideration of Final Orders

The Act introduces a new section (s65DAAA) that codifies the Rice v Asplund rule. A court must not reconsider a final parenting order unless:

1. There has been a significant change of circumstances since the order was made; and
2. The court is satisfied that reconsideration is in the child’s best interests.

5. Delegated Powers

Amendments allow Federal Circuit and Family Court of Australia (FCFCOA) Registrars to be delegated the power to impose make-up time parenting orders in contravention proceedings.

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Sterling Law can be contacted by phone on 07 3667 8213, or by email: office@sterlinglawqld.com