New Year – New Family Law Act?

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.