The Family Law Amendment Act 2023 was passed through parliament in October 2023 and took effect on 6 May 2024. The Act involves changes to how the Courts will make parenting orders in the “best interest of the child” and challenges the assumption of week-on week-off parenting post-separation.
In this episode, Ben and Heather discuss (and sometimes debate) the need for and impact of the changes.
Family Law Amendment Bill 2024 – download a copy of the bill.
Children Beyond Dispute – Jennifer McIntosh’s website has great resources for separating parents.
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Benjamin Bryant: Welcome to episode 57 of The Family Matters Show. I’m your host Benjamin Bryant from Bryant McKinnon Lawyers.
Today we are going to talk about the Family Law Amendment Act, 2023. This act passed through Parliament in October 2023 and took effect on the 6th of May 2024. The act involves changes to how the courts will make parenting orders in the best interests of a child. It has been in effect for over six months now, and judges and family lawyers are starting to come to terms with the changes.
Today I am joined by my partner and family law expert, Heather McKinnon, to discuss these changes and how they may affect our clients and others who turn to the courts to settle parenting orders. You will hear that although we generally come to the same conclusion, we take vastly different approaches.
Before we jump into the show, a quick reminder to share this podcast with any family and friends who are on the rather scary journey of separation. We now have a library of over 50 podcasts that will provide the answers people need to feel less fearful and to make informed decisions. And now, on with the show.
Benjamin Bryant: Hi Heather, welcome to the show. We’re going to talk about legislation today. So we’re going to try and keep it upbeat. Do you reckon we can do it.
Heather McKinnon: Oh this is about sections. And you know how good I am at that Ben.
Benjamin Bryant: All right. We’ll walk you through it. Don’t worry.
Benjamin Bryant: So Heather with the recent amendments, when I say recent, we’re talking about the 6th of May 2024, when the amendments came into place, the Family Law Act essentially got a rehaul. We’ve changed what’s going to happen in terms of the presumption of equal shared parental responsibility. So it’s not presumed that the parents have or share parental responsibility. We’ve gone ahead and we’ve amended considerations that the court takes into account when considering what’s in a child’s best interest. We have removed the idea of the children’s right to have a meaningful relationship with both the parents. We’ve removed the idea that there’s two pillars to the best interests of children, that is, to keep children safe, of course, and also a meaningful relationship with both of their parents. After those two pillars, we had the other ancillary matters, such as relationship with grandparents and significant others and things like that. But we’ve removed the two pillars, and we’ve just got six factors now. Simple factors in relation to what the court is to consider when considering what’s in a child’s best interest. Is that a fair summary of your understanding of the changes.
Heather McKinnon: Absolutely. We’ve put the kids back at the centre so that now decisions are made about what’s best for the children, and what the parental capacity is to meet the needs of their kids. I think the language change is important because before I think people thought that it was about parental rights, rather than clearly saying, no, parents don’t have rights, this is about kids.
Benjamin Bryant: Heather when and why did the government decide that an amendment was required to the Family Law Act?
Heather McKinnon: Well, it’s all history, isn’t it? People underestimate the power of language, in my experience. In the 1990s, there was a concerted effort in Australia by men’s groups to even up what they saw as damage that had been done to families by the introduction of the Family Law Act. In my view, the politicians were led in error to make changes to the Family Law Act to appease certain political lobby groups. What that did was, in my view, really damaged children for two generations now. The government was approached a couple of years ago now by mental health professionals, psychiatrists and psychologists who had been treating Australian teenagers and children, saying, look, these kids are really being affected by policy decisions in that when the Family Law Act changed, the words said that parents had joint parental responsibility. What the layperson took that to mean was that parents had the rights to, in lay terms, have week on, week off with their kids. Unfortunately, most Australian families who separate don’t go near lawyers, and the word on the street was that you had to share your kids equally. What the public wasn’t told was that can have disastrous consequences to the development of security in young children. So we know from decades of study of children that in their formative years they need a primary attachment figure. So traditionally that would be mum. And up to 36 months we know that the role of a baby human is to learn to feel secure with their primary parent, and then once that security has been formed, they then move to make the next lot of human relationships. And normally that will be with their dad and their siblings and people like grandparents. We now know that if you start putting kids in week on, week off as tiny little humans, you can really interrupt that process, and it may not raise its head until adolescence.
Heather McKinnon: So the psychiatrists and psychologists sat with the politicians and said, we’ve really got to send a different message here. This has really impacted kids. The politicians listened to the science. Last year they put these amendments through so the language is different. It now says kids are the people that have rights. Parents don’t. Kids need to have safety, both physical and psychological. And when parents are making decisions at separation about how their time is to be shared, the primary consideration is to tailor make an arrangement for each child that suits their circumstances. So, for example, you would have been in practice seeing little ones who may be on the autism spectrum. The parents just put them into week on, week off. And these are little kids whose primary need is for absolute routine, absolute knowledge as to where they’re going to wake up in the morning. Every child has different needs, and the way the language is now changed is that we’re going to be looking more carefully at every child, what their particular circumstances are, what pattern needs to be put in place to make sure they’re safe, and that they feel secure. And it sends a very big message to the general public. Parents do not have rights, and there’s no such thing as a right to a week on, week off or equal time. So in lay terms, that’s what we’ve done. We’ve changed the language. I still think it’s going to take some time for people to understand why the language has changed. And in the arrangements that are made for kids, be very careful as young parents about putting kids into a time arrangement that interrupts that primary attachment development.
Benjamin Bryant: Heather this is going to be a really interesting conversation. Funny because our producer Steph asked before we started the show, is it going to be controversial? And perhaps it is. We take a different view on this one. I think all roads lead to best interests of children, right? that’s our paramount consideration. That hasn’t changed. But for me, you mentioned it’s been coming for years. And this has been an evolving piece of legislation. the difference between you and me, of course, is I came into practice in 2009, which is about three years after John Howard put in the old amendments, as they were, which introduced the consideration of equal shared parenting once an order was made for equal shared parental responsibility, and for me, that’s all I’ve known. I haven’t known anything before that, which you have. Things like the status quo and, attachment theories and custody, all these words you’ve been exposed to in your career, I have not been exposed to. My whole knowledge of the Family Law Act and the family law system is based on those 2006 amendments. So for me, this is the first big change that has come, which has kind of given me pause for thought. And I still don’t quite understand where we go from here. I’m all for best interest of children. But this is not about changing the parenting framework, essentially. It’s about removing the parenting framework. Which is, to me, crazy. for example, one stat that always came to mind was in terms of the shared care, who is doing that? And I remember the stats were something like out of the orders, where it was shared care (or week about as people would know it) were made, about 70% of them were made by parents themselves, not by way of a court at all. The court was only responsible for about 30% of them. I accept your point that there was this public misconception, perhaps using words like the court must consider. it’s a bit of a nudge to get people to consider these things. I accept that. But, for years we’ve been talking about the risk and relationship keeping children safe by also prioritising relationship with other parents. Okay. That’s what we’ve been doing for years. And then to get rid of that and just have relationship with parents and others as like point 4 of things to consider in the best interests of children, I think is really… It’s interesting. I’m not I’m not saying I’m against it per se. It’s uncomfortable for me because it’s unknown, but I still don’t know where it’s going to lead.
Heather McKinnon: I should give a bit of a history lesson here about when the Family Law Act was set up, there were two divisions. One was the judicial arm and the other was the social science arm. And for those of my age, they would remember Alastair Nicholson as the chief justice and Dr Carol Brown as the head of the counselling arm of the court. Over the years, that has whittled down and the judicial arm has become the driver, if you like, and we lost a whole generation of brilliant, trained family therapists. What the amendments do is bring back in the recognition that in making decisions about little ones, we need top rate social scientists with expert training and recognition of high-quality backgrounds, if you like. So one of the amendments is that we’re bringing back a standardisation as to who’s going to do the research about each little one and what they need. So one of the big problems that I see was that we devalued social science in the last two decades. That meant decisions were being made by parents in a vacuum, if you like. Because if I’ve got a young dad who comes in, his partner and him have got a two-week-old baby. I talk to him about his role is to back mum up. His role in the next few months is to make sure that everything can be done to secure it, and his role becomes more important, until when the kids are about eight, they’ll easily move between the parents. But I think what Parliament wanted to do with the amendments was clearly indicate to the public, you can’t make decisions on parental rights, that we’ve got too many decisions being made as if the kids are a bit of meat that you pass between, two shopkeepers. Decisions have got to be made for your little one.
Heather McKinnon: And even within sibling groups Ben when we’re acting as ICL or Independent Children’s Lawyer, you might have three kids in a family. All of them have different temperaments, all of them have different developmental needs. And we’ve got to get parents, with the help of social scientists, looking at how to minimise the disruption to the child’s development when mum and dad separate. I think we got into too much of a one size fits all. And as you said, very few decisions about kids are made by judges. Most of them are made by parents who never come near the court. But the message that Parliament previously sent to those parents was clearly they thought they had to share the kids equally. And it happened every time a young couple came to see me. They thought the law was that the kids had to have week on, week off, and it just created absolute chaos in the general public. And it was when the mental health stats at the level that adolescent child psychiatrists saw that said, we’ve done something here that’s damaged kids. These kids didn’t have the security in childhood they needed, and it’s come home to roost in adolescence.
Benjamin Bryant: And Heather, I just wanted to touch on something quickly. In your response, you spoke about traditional roles, and then in one of your examples you spoke about, for example, when I have a young dad come and see me, I just want to make it clear to the listeners what you’re saying when we’re talking about that, because we have obviously male and female clients, dads and moms come and see us. And we just want to say, nowhere in the Family Law Act still, does it have the word male or female in it. Nowhere in it does it say mum or dad. So when you’re talking about traditional roles, you’re talking about what is happening in society irrespective of the Family Law Act. And you know what the standard and the norms are. So in the example that you gave when you have a young child, two-month-old child with mum, that is because for most people that is the norm. Young children with mums, But the Family Law Act would operate exactly the same had the dad been the primary carer. Yeah.
Heather McKinnon: And certainly I’ve got heaps of dads who have primary care. So parental capacity is what we’re looking at when we’re looking at where a child should be placed. We’ve got a matter in court at the moment where, the mums heavily affected by substance abuse and the children have been with dad because he’s the one who has capacity to look after them. So it’s absolutely the case that you can’t interpret what kids need on the basis of gender. What we’re talking about in terms of security and stabilising children when they’re little, is looking at the capacity of each parent to meet their needs. And there are very many reasons where capacity of parents means they can’t look after young children. And gender stereotypes have nothing to do with decision making.
Benjamin Bryant: And also what you said before Heather, going back to that attachment theory, putting that front and centre. And I think what we’ll do is Jennifer McIntosh, you know, she has great resources about this at her website, Children Beyond Dispute. She’s been one of the people in the foreground, researching this. So we’ll put a link to Jennifer McIntosh’s website, Children Beyond Dispute on our website so our listeners can get that. It is a great resource to learn about attachment theory and also what developmental ages and needs of children. Just getting parents to understand what those needs may be compared to other children of that age. So it’s a great resource. Heather it’s long been the case that decisions on children’s matters must be made in the best interests of the child. Do the amendments change that in any way?
Heather McKinnon: What it does is, I suppose, codify the six areas you’ve spoken about as to what best interests are. It talks about emotional, physical and psychological safety, as one factor. It really gives us a practical way at looking at how a court might make a decision. So the wishes of children are really being brought to the forefront. We’ve got the things we’ve spoken about in terms of the developmental needs, the needs of each child within a sibling group. There may be kids have different needs. We’re looking at that need for kids to feel they have a good relationship with both parents, which we had before. But I suppose what it does is ranks these core factors. And really what it’s doing is in expert reports, when a psychologist is asked to give a report to a judge, these are the six factors they’re now going to be focusing in on. Looking at the capacity of each parent. Is anyone affected by substance abuse, mental illness? Are the kids unsafe because one person has a propensity towards violence in the home? It’s really bringing all the research in the last 20 or 30 years and putting it in words so everyone knows what we’re looking at when we make decisions.
Benjamin Bryant: And I also think it’s important to note, Heather, that there’s the new section 60 cc, subsection three, which is specifically designed for indigenous children. Before, as you know, previous section 60 cc, the indigenous culture and the connection was kind of an add on. whereas what the Act does, importantly, making that as a separate subsection now, so it’s something that the court must consider if the child identifies as indigenous. And again, we’ve spoken to that previously on the podcast in terms of specialist indigenous lists as well. So if that’s an area of interest for our listeners, please check out that episode.
Benjamin Bryant: Heather, you and I both practice as independent children’s lawyers, meaning we’re sometimes employed to represent the interests of a child. Has the amendment changed how you represent children?
Heather McKinnon: It certainly has made me implement more interviews or sighting of children that are younger in age. So, I usually rely heavily on the schools to organise my interaction with children, especially in infants’ primary school. Now the Act says that we have to see kids. Whereas I used to take the view that if they were little, they’d be coming to see me. I wouldn’t be able to get much information. But now the Act says that look, you’ve got to at least sight them. Where I think this is really interesting is often, we’ve had kids that we act for in regional New South Wales, and we haven’t been able to meet them because they lived at Broken Hill or whatever. So we’re having to look at technology. So if I’m acting for little ones at Lightning Ridge, I organise with Lightning Ridge Primary School to do a Zoom session with the principal or the school counsellor or the kid’s teachers, and the teacher helps explain to the kids who I am. So I think for me, I’ve really brought the schools much more into play in these cases. I find that the school’s a neutral environment for the child, and that’s really been the change for me personally in the last few years. Because when kids come into the office, they’re usually with one parent or the other. And you get all these setups where the parents think they’re going to get brownie points if the kids come in under their care. So I think I’m developing that. It’s not something that a lot of people do, but I’ve found it really helpful. It also gives me direct access to the classroom teachers. I’ve got cases at the moment where kids are living in areas where OT, speech therapy and physio is not readily available, and the schools are often the people who know which people are coming to that area. So that’s the change. I’m relying more on getting that objective sort of meeting with kids in the school environment.
Benjamin Bryant: What I’ll say for the listeners who perhaps are in court, and they have an independent children’s lawyer, and they say, well, my ICL hasn’t met with my child yet. I think it’s important to know that the ICL still has some discretion. They can seek leave from the court when appropriate, not to meet with the children, and that may be appropriate in some circumstances where perhaps the child has met with everyone under the sun already. The ICL is not really going to add anything, and so the ICL then takes on more of the evidence gathering role rather than meeting the child role. But also, of course, if the child is under five years old, it’s not a requirement for the ICL to meet with the child.
Benjamin Bryant: Interestingly, Heather, a couple of weeks ago I was in the national ICL conference in Perth and one of the reasons why they codified this, the meeting with the children thing, is the different practices between the states. Now, I didn’t know this. Melbourne loved to meet with all children Brisbane never meets a child, New South Wales is kind of in the middle, you know, hit and miss. So I have no idea why that is. There’s nothing in the rules, the regulations or anything like that. It’s just one of those cultural norms. Well, now it’s mandated. We’re meeting with children.
Benjamin Bryant: And Heather, what about family report writers? These are the independent family consultants that the court appoints to prepare a family report, a document that a judge may rely on to make decisions. Does the amendment have any impact on family report writers?
Heather McKinnon: It certainly does. We’ve still got to see how it plays out. But the Parliament has now said that there’s got to be uniform standards and accreditation for the people who are giving evidence. I hope that that means that there’ll be more appropriate funding and that we’ll, across Australia, have a high level of forensic experts who are trained in this field. Because it would be lovely to get back to a stage where we have clinicians who really enjoy this work, have expertise and understand it. Because it’s, as you know, become very variable around Australia as to the quality of the writers. I think their research showed that. And so now they’ve put into the Act that they’re going to do something about making sure we’ve got uniform experts who are trained properly and accredited properly.
Benjamin Bryant: So the court’s got some new power for the regulations, but no regulations just yet. So we’ll wait and see.
Benjamin Bryant: And Heather, in your experience so far, has the amendments changed the way the judges make decisions in child related matters?
Heather McKinnon: It’s too early to say, because the first lot of cases are really not going to be determined until the middle of next year, would be my estimate. the cases that are going to be contested and are going to contest this law and give us guidance are not going to come on for hearing until the middle of next year. So the listeners understand, we get case notes every day. When decisions are made around Australia, the judgements come through to our screen. Obviously, you and I are keen to see how judges are going to interpret these changes, but it’s a bit too early. Come back this time next year and I think we’ll have much better guidance.
Benjamin Bryant: Heather, I think this question’s really interesting and I’m going to press you further because you mightn’t know, but I want your gut feeling. Because it could be that we’re just changing it up. We’ve just changed the headings and the paragraphs and the subsections and all those things, but we’re still doing exactly the same thing. Or it could be completely different. What’s your thoughts?
Heather McKinnon: I think the big change is family violence. I think that Parliament has sent a direct message to the judges that we have to look at whether family violence is impacting in this family, how it’s impacting the kids and what we have to do. That’s going to be huge because it was raised often in litigation, but it wasn’t something that was foremost. So I think you are going to see, and we know that the judges have been put through lots more training, and there’s lots more expertise coming in to get them to really understand what the impacts are. Definitely, that’s going to be a big change. I really want the halcyon days to return of having really top flight forensic experts. I would love to see one of the big universities take on the mantle of saying, we’re going to offer a master’s degree in forensic reporting for the Family Court, so that we really start to gather back some real heavyweight evidenced by people who really get what kids need to be explored.
Benjamin Bryant: It’s just it’s so interesting. Because it’s to me, again, maybe I’m just resistant to change. You know, 2009 admitted lawyer. I don’t want to let go of my family law act. But, again, family violence is incredibly important. Without a doubt. And there’s been a lot of changes in terms of the definition of family violence and especially the coercion and control and things like that, and also the impact on families and also the education, let’s say, of judges, of lawyers, of the community. That’s been a real focal point and rightly so. So don’t think I’m speaking against family violence. But I guess my question is, did the old act not do that? looking at the section 60 cc and the pathway that the court would take, family violence was of course, a consideration back in the old act. So I’m really interested to see, like I said, is this something really, really new or is this something that we’re still doing just referring to different sections? for me, it was good and good. I mean, that’s a very famous case law for our listeners, which gave practitioners and all court users and judges the legal framework. So before a court can make a parenting order, it has to consider parental responsibility. If the court was going to make an order for equal shared parental responsibility because it was appropriate to do so, then this is what it must consider. If not, then this is what it must consider. It set up a scaffolding for everyone to know what to expect. Now all of that’s gone.
Heather McKinnon: It’s the philosophical difference between black letter lawyers and equity lawyers. So we’ve had podcasts before about binding financial agreements, and I’m on the far side of the spectrum that says you can’t control human interactions by words in an Act of Parliament. So that’s where you’ve got the big split, if you like. And it’s always been there with lawyers. What makes our partnership excellent is we have two different approaches. You are somebody who really likes the structure of that. I’m someone who has no regard for structure and for sections of an Act of Parliament when I’m looking at a little one. And so we represent the profession fully. And what makes it great in our practice is that you’ve got both sets of skills. So it is a correction back to the centre if you like. But I will forever believe that you can’t make a decision about a child based on words in an Act of Parliament. Decisions about children have to be made by looking at excellent expert forensic evidence from social scientists about what that little one needs. That’s where you’re seeing these two polarised positions. I think this act sort of tries to send a message from Parliament. We’ve got to come back more to the centre. You know, I feel for the politicians. I mean, we know that the people that visit their office, most are likely to be family law litigants. So for them, they just see this whole world all the time as being in chaos because people are complaining about child support agency or decisions made, the costs, the delays. So they, the poor pollies, want to be seen to be doing something so that they can say to the public, look, we’ve fixed this. Unfortunately, I don’t think words fix it. I think it’s much, much more complex.
Benjamin Bryant: Well, let’s put a pin in it. And why don’t we propose in 12 months’ time, we cover this again. And we’ll see. We’ll have a look at the case law that’s come through, and we’ll see if we have a new set of steps and scaffolding or we’re still frolicking in the wilderness.
Benjamin Bryant: Heather does the amendment affect compliance and enforcement of child related orders?
Heather McKinnon: It does. The words do. So what we’ve got to see now is whether it changes it. So for example, practically we have junior judges called registrars. And they’re going to be able to do things like make up time. So if someone has an order that they see their kids in the holidays and they haven’t been able to, they’ve extended the ability of those judges to make orders that the kids spend more of the next holidays with the parent that they were supposed to. They’re again trying to do something about this small percentage of people who just won’t comply with what a judge says. It’s always been a problem. I suspect it always will be, but I think resourcing it, having special lists for those habitual offenders is a really clear message that you have to do what you’re told. For those people that need the big stick.
Benjamin Bryant: That’s right. I think with the enforcement, the principles are the same, but the redraughting is simpler. And as you said, getting a bit more power to the registrars. So we’ll see how that goes.
Benjamin Bryant: Heather the Family Law Amendment Information Act was passed and came into effect at the same time as the other amendment. In those amendments, it’s all about trying to get information between the court and other agencies quicker, the sharing of it quicker. Has it made a difference?
Heather McKinnon: Absolutely. I’ve got a case on this week where we had a lot of information about the family from New South Wales, and there wasn’t a lot of worrying stuff, but the Victorian compliance with the subpoenas through the police and their human services had revealed a horrific history. Prior to this information sharing, it was really difficult between states and things. I think on the ground we’re seeing a big pick up in exchange and more information coming to the Court in a timely manner, which is assisting both the judges, and the court report writers get a clearer picture of the history. But this transient sort of Australian population, we’re finally realising that people move from Victoria to Queensland, back to New South Wales, and you have to have the complete picture. You can’t just use the state jurisdiction.
Benjamin Bryant: Also with the Child and Young Persons Protection Act, with the child protection system being at a state level and the family Court being a federal level, a lot of people don’t understand that those offices aren’t always communicating. So that’s a design of this, is to try and get them communicating more effectively. in my experience, Heather, I think it’s fair to say that before we would have to issue a subpoena to someone like DCJ or Department of Communities and Justice. The subpoena return would be about three weeks. Now the court can make an order, and we’ll get information within about three days. So that’s the effect of it.
Benjamin Bryant: Heather finally, is there anything you’d like to add about the amendments that our listeners need to know?
Heather McKinnon: Look, I think it’s great that Parliament’s focusing on kids. I think that they’re often forgotten in the scurry of life. And hopefully these amendments do focus all of us back on: adults need to be very careful when they frame legislation that affects children. They can’t vote, so often they don’t get to have any say in what happens. But I think this Act has really focused us back in on we’re making decisions about really vulnerable little ones, and if we stuff it up, the economic and social costs long term are disastrous.
Benjamin Bryant: We’ll have to wait and see. And of course, the government’s not stopping there. They’re onto focusing their minds to the property matters next. And there’s a bill currently before Parliament. So we’ll have to wait and see. Thank you, Heather. Always lovely to chat.
Benjamin Bryant: Thank you for listening to this episode on the 2024 changes to the Family Law Act. We know this legal stuff can be a bit dry, but for anyone facing court on a parenting matter, it is valuable to understand the legislation.
There is a wealth of questions when you’re going through a separation, not just about legislation. And that’s why we created this podcast. We now have an extensive library of episodes on different topics featuring different experts, so make sure to review our growing library to find the answers you need. If you have specific questions and can’t find the answers in our library, please email us on familymatters@bryantmckinnon.com.au. We will do our very best to get you the answers you need. Have a look at our website bryantmckinnon.com.au where we have categorised the episodes to make it easier to find the information you are looking for on the website. You’ll also find the full transcript of today’s show and links to any resources mentioned. A final reminder to please share this show with any friends or family who may benefit. We hope to have you ears again soon.