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Family Law changes - 6 things you need to know

Family Law changes – Earlier this year, the Australian Government consulted on draft changes to the existing Family Law Act 1975 (the Act), after the Australian Law Reform Commission made recommendations to amend the Act.

Posted: June 02, 2023

The Family Law Amendment Bill 2023 (the Bill), if passed later this year, will amend the Act by addressing some of the most important and urgent issues raised in relation to children and parenting. Our Family Lawyer Lescha Lawson takes us through the six most significant proposed changes.

1.  Removal of presumption of ‘equal shared parental responsibility’ 

Recent inquiries into the family law system found that this presumption is one of the most problematic parts of Australia’s family law framework, with fears it could incentivise abusive partners to litigate parenting disputes.

‘Equal shared parental responsibility’ simply means that parents are required to consult with each other when making major long-term decisions (for example, in relation to education and health). It does not mean that both parents have a right to equal shared time with the children.

This common misunderstanding can prolong litigation and increase parental conflict, which is not in the best interests of the child.

It is anticipated that the removal of the presumption of ‘equal shared parental responsibility’ would allow the law to become more child-focused, as it would no longer presume a particular outcome, with the court simply assessing the best interests of the child using the factors contained within the Act.

Effectively, this may mean that parental responsibility could be exercised solely by the person who has the physical care of the child at the time in relation to day-to-day matters.

2.  Determining what is in the best interests of the child

Currently, the Court must consider a lengthy list of factors (15 in total), when asked to consider what is in the best interests of the child. This leads to lengthy court judgments and can be confusing for parties.

The Bill proposes that the list of factors be reduced to just 6 core factors, being:

  • what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm;
  • any views expressed by the child;
  • the developmental, psychological and emotional needs of the child;
  • the benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so;
  • the capacity of each proposed carer of the child to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring; and
  • anything else that is relevant to the particular circumstances of the child.

3.  Aboriginal and Torres Strait Islander children

The Bill seeks to expand the definitions of ‘member of the family’ and ‘relative’ to better recognise Aboriginal and Torres Strait Islander notions of family and kinship. This mandates the Court to consider the kinship obligations and child-rearing practices relevant to the child.

Further, with a view to strengthening the importance of Aboriginal and Torres Strait Islander cultural connection, the existing factor of ensuring parenting arrangements are made that allow for children to have a connection to their culture, is proposed to be included in the Act as a standalone additional factor.

Importantly, the redrafting of any definitions followed consultation with peak Aboriginal and Torres Strait Islander organisations.

4. Changing Parenting Orders

The Bill seeks to clarify that a parenting arrangement made by a Court can only be changed if there has been a significant change in circumstances since the order was made. Whilst Courts have set out what this means in court judgments, the Bill seeks to create a clear list of the factors a Court should consider when deciding whether it would be in the child’s best interests to reconsider a final parenting order.

5. Children having a greater voice on parenting matters

The Bill proposes that Independent Children’s Lawyers (ICLs) will meet with children, in specific cases, to a greater extent than they have previously, to make sure the children’s views are considered when the Court makes parenting arrangements.

6. Other proposed amendments to the Act

The enforcement of parenting orders, and consequences for non-compliance with parenting orders, will be simplified.

Further, parties’ obligations to keep proceedings confidential will also be updated to reflect our society’s ever increasing use of social media platforms.

The Bill also proposes to provide greater protection to those who are subjected to the harmful effects of litigation, in instances where the family law system is misused or weaponized by perpetrators of family violence.

Looking forward

Whilst these amendments contained within the Bill seek to address the more urgent concerns, namely around children having their best interests at the forefront of decision making, and simplifying processes, the Australian Government has reiterated its commitment to improving the family law system so that it is accessible, safer, simpler to use and delivers justice and fairness for all Australian families.

Statistics show that the vast majority of parents settle their own arrangements out of court, however there will be circumstances that simply do not allow for this to occur. If you find yourself requiring support in your navigation of the family law system, whether it be in relation to parenting arrangements, property settlement matters or domestic and family violence concerns, our Family Law Team is here to support you. 

To find out more about how our team can support your family law needs, get in touch with our Family Law Team today.