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What does the Family Law Amendment Bill 2023 mean for Family Law in Australia?

In late January 2023 the Family Law Amendment Bill was released by the Attorney-General’s Department, sparking significant debate around the proposed amendments and what that might mean for past, present and future separated families.

On the back of the number of Family Law inquiries over recent years and most significantly that of the Australian Law Reform Commission, the Government developed a draft Family Law Amendment Bill 2023 to address some of the most important issues in relation to children and parenting matters as an urgent priority.

A summary of the proposed changes and their potential impact are as follows:

Parental Responsibility

Under the proposed reforms, the Government is repealing the presumption of ‘equal shared parental responsibility’ and the resultant requirement to consider specific time arrangements.

The current legislative regime with respect to parental responsibility is very commonly misunderstood and misinterpreted as parentings having an entitlement to equal shared time with their children. This is incorrect and has never been the case. This misunderstanding can lead to parents entering discussions assuming they MUST have particular arrangements, even if they may not consider them appropriate for their children. Furthermore, it has been found that this provision is oft used to continue domestic and family violence post separation.

Importantly, the Court will still be able to make Orders for both equal shared parental responsibility and equal time, but the decision-making process to get there will be significantly different.

Simplified list of best interests’ factors

The current list, contained within s60CC of the Family Law act has two primary factors and thirteen additional factors the Court must consider when deciding about what is in the best interests of a child.

Under the proposed amendments, the list of best interests’ factors will be reduced to six for all children and an additional specific factor for First Nations children. The intention of the changed factors is to provide a more contemporary framework for decision making by the Court.

The proposed new factors will be:

• 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 development, 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 circumstances of the child

In relation to First Nations children, whilst there has always been a factor specifically relevant to their cultural needs, there will now be a standalone factor to ensure this consideration is prominent. An expanded definition of member of family will be applicable to ensure that the court is being more inclusive of the Aboriginal and Torres Strait Islander concepts of family and kinship, which are wider than those currently recognised in the Act.

Simplifying the Court’s enforcement process for parenting orders

The Australian Law Reform Commission identified that the current parts of the Family Law Act relating to enforcing parenting orders and consequences for breach of them are too complex. The redraft provides clearer and more straightforward provisions about the consequences of breaching a parenting order. The intention of the amendments is to assist in parties understanding the importance of complying with parenting orders.

Giving clearer understanding of when a parenting order can be changed

The current amendments will provide for clarity about when a Parenting Order can be changed. The draft bill uses the case law that exists around this issue to put into the legislation what the courts should be look at in deciding whether it would be in the child’s best interests to reconsider the parenting Orders.

Changing how children’s views are heard

The draft amendments make it a requirement, in majority of cases in matters where an ICL (independent children’s lawyer) is appointed to meet with children to explore their views. Currently it is not a requirement, but an option for an ICL to meet with children.

Enabling the discussion of proceedings with family members or friends

Currently, the provisions of s121 of the Family Law Act prohibit the publication in any way of information that identifies people involved in family law proceedings.  Strictly interpreted, this means that a party to court proceedings cannot discuss them with their parents, current partner or trusted confidante. The amendments will remove this strictness and allow private communications between parties and their family members and extending this to a professional, academic or researcher. The amendments will further confirm that public communication by social media, is not allowed.

Protections from harmful effects of litigation

Currently, the only way that a party can be stopped from the filing of many applications is by way of a “Vexatious Litigant” order, the obtaining of which can be expensive and time consuming and only after a significant number of applications have been made. The amendments open up these restrictions and allow the court to stop further applications where it would be harmful to the other party, or the children involved. The amendments reflect that a history of frequently instituting court proceedings is not the most important consideration when protecting a party or a child from the effects of litigation.

The second aspect of these protections extends to the capacity to issue subpoena to and use documents produced under subpoena addressed to medical, counselling or psychological services.

The amendments mean that these records could still be used, but only in certain circumstances. It will be the responsibility of the person seeking to rely upon the documents to establish that the information will not have a harmful impact on the person who’s record they are, if the court admits them into evidence.

Regulatory Regime for Family Report writers

The Australian Law Reform Commission recommended that there be a regulatory regime implemented for Family Report writers involved in parenting matters. This was considered necessary to ensure the quality and safety of these important experts.

The amendment Bill allows only for the power to exist and thereafter the Government will have to take steps to develop and implement the regulations and standards.

So, what does this mean for:

1. 1. Parents with existing Orders?
      If the proposed amendments become law, nothing will change about existing Orders, they will remain valid and enforceable.
   2. Parents with current Court proceedings
      For the most part, the new law (if amendments are passed) will only apply to proceedings started AFTER the commencement of the amendments.  Thus, if there are already court proceedings on foot, the new law will NOT apply.

When will it all start?

If the amendments are passed into law, there is likely to be a 6 month lead in time before most of the changes come into effect. This will allow family law professionals to become familiar with the changes and the impact upon their advice to clients.

There is currently a consultation process being undertaken, allowing the public and family law professionals to comment on the proposed changes. This process will end on 27 February 2023 after which time the Bill will be considered by Parliament.

Watch this space!

If you have any concerns or questions about these proposed amendments and what they may mean for you, or any Family Law related enquiries or issues, contact the Gold Coast Family Lawyers team at OMB Solicitors for a free initial consultation.

Why Is January The “D” Month?: Divorce Month

Statistically and practically, for family lawyers, January every year sees an influx of inquiries from new clients seeking advice on their relationship breakdown.

Why is that so?  Quite simply it is the holiday season and the stress and disillusionment that can follow from the Christmas period.

Some of the boiling points over the holiday period that contribute to the end of the relationship are:

Financial Pressure

There is no doubt that 2022 brought about significant financial pressure on families and when you combine the interest rate hikes of 2022 with the associated costs of Christmas such as gifts, socializing, family gatherings etc, the pressure on household budgets is immense. The pressure to keep up with those around us or not let our kids down with the presents they want, often sees families living beyond their means.

Extra spending can result in significant relationship stress and take a toll on your relationship. When your relationship is already undressed and stress the Christmas spending can take things over the edge and the already difficult relationship becomes unrepairable.

Extra time with Family

Sometimes dealing with our family is a massive headache at the best of times. Christmas sees an increase in the amount of time spent with our immediate and extended families (including the dreaded in-laws). It is often the unrelenting pressure to “get along” with family with whom we have an already strained relationship that ends up with huge arguments and relationship breakdowns.

Different parenting styles

Holiday mode takes us out of our routines and usual daily life. Often the “non-primary caregiver” is at home, and may want to just do the fun stuff, causing the parent who is trying to keep a semblance of routine and order to feel upset and angry that their routines and arrangements are not being respected.

Changes in routines and behavior impact both child and parent stress levels and can result in sleep disruption. Sleep disruption results in tiredness and tiredness results in short tempers and short tempers result in arguments. Simply having more time in the home together makes more opportunities for conflict and one little argument is often enough to become the breaking point for a relationship.

“Just one more Christmas”

When someone has in their own mind resolved to end their relationship, often they try to keep it together just for Christmas “for the sake of the kids”. This means that after Christmas and when lawyers get back to business, they soon after consulting with a lawyer about ending their relationship.

New Year New Me

The start of a new year brings about the opportunity for self-reflection and re-evaluation of your life and your goals.

If we no longer consider our relationship to be serving our needs, then January seems to be the most logical time to decide to move on.

No matter the time of year, OMB Family Law are available to guide you through your separation. A specialist team of Gold Coast Family Lawyers within OMB Solicitors, OMB Family Law have the resources to help you resolve your Family Law matter. Contact us on 5555 0000 or via our website for an information pack and to arrange a free in initial consultation.

Top 5 Tips for Christmas Holidays to Surviving the Holidays by OMB Family Law’s

The world will not end if the children do not see both parents on Christmas Day.

It may be best to allow the children to spend Christmas Day with one parent and Boxing Day with the other, allowing the children to enjoy time with both sides of the family without feeling rushed.

This is particularly important if seeing both parents would cause the children to spend a significant amount of time travelling between households. A common solution is to alternate the year in which the child spends Christmas or Christmas Eve with each parent.

Remember that Christmas is for the children first and foremost, so put your personal feelings, opinions and wants to the side and make arrangements that benefit your children primarily.

Changeover should be stress-free – do not fight in front of the children.

Exposure to conflict has lasting effects on children and can damage the relationship between a child and their parent.

If you believe that it likely that the other parent will become verbally or physically abusive to you when delivering or collecting the children then you must consider safe alternatives such as having a trusted friend or relative assist with changeover, or depending on the age of the children allowing them to enter their parent’s property and you remaining outside in the car or at the kerb side.

Do not prevent a child contacting the other parent.

It is important for children to have a meaningful relationship with both of the parents where at all possible. If your child wants to call their mother or father in their time with you, use your discretion as to whether timing is appropriate but otherwise you should encourage regular contact especially if the child expresses the wish.

Let them enjoy telling their other parent about all the wonderful things that have occurred in your household and allow their other parent to experience that joy. It is only a small imposition on your time, but will mean the world to the other parent.

Communicate and be flexible

Keeping an open communication with the other parent is best for the children as long as that communication is respectful. You should try to provide information to the other parent on anything to do with the children that is relevant to the other parent’s time with the children or regarding the children’s activities, schooling, health or wellbeing. Also if changes need to be made to arrangements from time to time, try to accommodate if possible provided enough notice is given.

Allow your child to take items of comfort or gifts between homes.

Particularly for young children, having favourite and familiar items with them can assist them to settle in the other parent’s home, such as teddy bears, blankets, or favourite toys, provided that there is a clear understanding between the parents that these items travel with the child and if something is left behind and the child becomes distressed, how that item will be delivered back.

Making children keep their toys and gifts at your house creates a circumstance whereby the children think something is wrong with their other parent’s home.  Allowing free passage of toys and belongings ensures that the children feel they have two homes rather than two “houses” – the difference is immense

Where problems arise, consider mediation as a first option.

Unhelpfully many services including legal services close over the Christmas and New Year period. Unless there are very urgent circumstances or there is a significant risk of harm (in which case you can contact the police), you should contact a mediation service in the New Year to arrange for Family Dispute Resolution so that 2024’s holiday period doesn’t suffer from the same hiccups that 2023 did.

If you anticipate issues, then please engage with your legal team now, to ensure that steps can be taken to progress matters and agreements reached, prior to the Christmas 2023 closure.

From the OMB Family Law family to yours, we hope that your 2023 holiday period is filled with joy and wonderful memories.  We remain available to assist you until 23 December 2022 and from 9 January 2023.  Urgent matters arising in the holiday period can be attended by contacting our Family Lawyers office on 55550000 and leaving a message or reaching out to us via our website.

Ownership Of A Pet In A Family Law Dispute

Despite pet ownership being a hallmark of Australian life, it is not very common to see the Full Court of the Federal Circuit and Family Court of Australia, in an appeal judgement, making a specific comment on the ownership of a pet in a family law dispute.

In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August 2022) the de facto Wife appealed an order which provided for the division of assets after a relationship of just under three years in the proportions 47.5% to her and 52.5% to the de facto Husband, as well as requiring the transfer of ownership of a pet dog.

The primary judgement devoted some 25 paragraphs to the determination of who was to own Roxy, and it concluded that the de facto wife was to transfer ownership of the dog to the de facto husband.

In reaching that conclusion the primary judge found that the de facto Wife was the registered owner of Roxy, had paid for Roxy and was at law her legal owner. However, the Court went further to state:

• Roxy was joint de facto property.
• It was conceded by her that the parties had purchased Roxy to be with the de facto husband’s daughter, who had chosen her from the litter, named her and been with the de facto wife when they had collected her.
• It was not appropriate to make an order to transfer ownership of Roxy to a third party who was not a party to the proceedings.
• However, given that Roxy was joint property, purchased at a time when the parties were intermingling funds and given the de facto husband had an emotional interest in the ownership of Roxy, the “justice and equity” resulted in it being appropriate to transfer ownership to the de facto husband.

In considering the de facto Wife’s appeal of those orders. The court considered the competing evidence and concluded that the de facto wife:

• Paid for Roxy’s purchase
• Paid for her desexing, registration, food, vaccinations, medications and grooming

Referring to the “emotional interest” referred to by the primary judge, the Full Court commented (commencing at 63):

As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant, and the Court is not, in effect, to undertake a parenting case in respect of them.

If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal and that can simply be dealt with in the ordinary course.

It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.

The appellant submitted that the primary judge erred in taking into account the emotional attachment of the respondent and his daughter Ms T, to Roxy and in failing to take into account the attachment of the appellant to Roxy.

These submissions are fundamentally inconsistent. However, we do not need to resolve them. For the above reasons, all the orders will be set aside, and the fate of Roxy determined as part of the re-exercise of discretion.

In ordering that Roxy should remain with the de facto Wife, the Court also considered the financial cost of Roxy and required the de facto Wife to pay the de facto Husband $800 which was Roxy’s purchase price, with the suggestion that he use this to assist his daughter to purchase another dog.

This case illustrates both the extent to which Australians are prepared to litigate for their beloved pets, but also the clear position of the court that issues such as emotional attachment and connection with an animal are irrelevant. Parties should take on board the wise words of the Full Court and if they genuinely wish to retain the pet, then they should put their money where their mouth is and make an offer to retain it, at a significant value.