29 Sep FAMILY LAW BILL 2023

The Family Law Reform Bill 2023, currently being debated in parliament, has been drafted in response to the Family Law for the future: an inquiry into the family law system (report 135) by the Australian Law Reform Commission (ALRC) in 2019. As well as the Joint Select Committee Australia’s Family Law System which delivered its final report in November 2021. The key changes that would be implemented with the Bill include:

Clarifying Sections of the Family Law Act 1975

Some of the proposed amendments to the Family Law Act 1975 (‘the Act’) is to simplify and make clear particular section of the Act and to make powers to increase efficiency. 

When it comes to ensuring that parents follow orders the Family Law Bill proposes to amend the Federal Circuit and Family Court of Australia Act 2021, allowing Registrars in both divisions of the court to be delegated the power to make a further parenting order for make-up time for non-compliance.

Protecting Family Law Information

Section 121 of the Family Law Act 1975 will be redrafted to make clear the requirements and provide greater clarity on the circumstances in which identifiable information can be shared. This will be consistent with the ALRC report.

A streamlined legislative framework for making parenting orders, including changes to the factors considered when making parenting arrangements in the best interests of the child rather than the multiple sections currently in the act which include the paramount consideration, sections regarding parental responsibility and additional considerations at Section 60CC.

Changes to Parenting Legislation – Part VII of the Family Law Act 1975

Currently, only 3% of matters are determined by the courts, meaning that most parenting matters are settled outside the court. To assist parents in making decisions for future parenting arrangements and agreements, the proposed amendments to the Family Law Act 1975 ensure that the child’s interests are at the forefront.

Upon review of the Second Reading Speech, it is clear that the government’s intentions of the Family Law Bill 2023 are to ensure that the child’s interests are the most important aspect when making decisions as the parental responsibility and time with the child. The Family Law Bill 2023 is also to reflect Australia’s obligations under the United Nations Convention on the Rights of the Child.

In determining what is in the child’s best interests, decision makers should consider six factors: the child’s safety, the benefit of having relationships with both parents, any views expressed by the child and their developmental, psychological, emotional, and cultural needs. Although not a new factor, there is a standalone consideration of opportunities for Aboriginal and Torres Strait Islander children to maintain a connection with family, community, culture, country, and language.

The change in the law is to make clear that there is not and never has been an entitlement for a parent to spend equal time with their children after separation. This is seen with the removal of sections 61DA and 61DB, which provide for the presumptions of equal shared parental responsibility when making parenting orders and for the court to disregard the allocation of parental responsibility if an interim parenting order has been made when making a final parenting order.

Parental responsibility will now be drafted to make clear that the purpose of this section is for parents to consult on major long-term issues, where possible and ‘to make a genuine effort to come to a joint decision’ [s 61DAA (1)(b) of the Family Law Bill 2023]

Section 4 of the Family Law Act 1975 defines “major long-term issues” in relation to a child as;

‘the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

s 4 of the Family Law Act 1975

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.’

s 4 of the Family Law Act 1975

Independent Children’s Lawyers

While most Independent Children’s lawyers (ICLs) meet with the children they represent, there is no legal obligation to do so unless ordered by the court. The Family Law Bill 2023 (‘the Bill’) proposes to have legal requirements for the ICL to meet with the child unless the child is under the age of 5 years or if the child does not wish to meet with them or express their views. Additionally, ICLs would not be required to meet with the child if it would put the child at risk of physical or psychological harm that could not be safely managed or have a significant adverse effect on the well-being of the child.

The proposed amendments to the Family Law Act 1975 for ICLs to have a legal requirement to meet with the child they are representing supports children’s rights under article 12 of the United Nations Convention on the Rights of the Child, and the limitations and directions imposed as to when the ICL is not required to meet with children is to safeguard their wellbeing from the adverse effect of family law litigation on the development and emotional needs of our most vulnerable.   

Independent Children’s Lawyers would be required to meet with a child and allow the child to express a view and expand the use of ICLs in cases under the Hague Convention on the Civil Aspects of International Child Abduction.

Additional Protections and Regulations

Harmful proceedings orders’ to prevent a vexatious litigant from filing and serving new applications without first obtaining leave and broadening the ‘overarching purpose of family law practice and procedure’ and the accompanying duty to all proceedings instituted under the Act.

Once this order is in place, the court would assess any further proposed proceedings to ensure that matters that are vexatious, frivolous, or unlikely to be successful are not being heard. However, applicants can seek leave to make the case for a particular matter they wish to bring before the court.

This order ensures that victims-survivors of family violence and their children do not suffer the continued abuse of coercive control by misusing the court.

Family reports in the Family Court of Australia are documents prepared by qualified professionals known as Family Consultants or Family Report Writers. These reports are a crucial part of the family law proceedings in Australia, particularly in matters involving children. The purpose of these reports is to provide independent and expert assessments of the family’s circumstances and the best interests of the children involved in a dispute. The proposed Bill intends to allow the government additional powers to create standards and regulations to ensure that all family reports are undertaken by professionals who have the knowledge and skills for this important task.

Our final note of the proposed amendments to the Family Law Act is for clear duties to resolve matters to ensure that parties are actively attempting to resolve matters in a timely and cost-effective manner and putting the interest of the child first. The Bill provides for structural changes to the practice and procedure section of the Family Law Act 1975. Noting that there will be cost consequences for parties or their lawyers if it is found that they did not actively comply with the overarching purposes.