Proposed Changes to the Family Law Act

On 30 January 2023, the Australian Government released a draft Family Law Amendment Bill (‘the amendments’) which proposed a variety of significant changes to the Family Law Act 1975 (Cth) (‘the Act’).  The overarching purpose of the amendments is to “improv[e] the family law system so that it is accessible, safer, simpler to use, and delivers justice and fairness for all Australian families.”[1]

Within the Government’s Consultation Paper, the Government acknowledged that the family law system faces ongoing challenges and requires change. For example, some challenges highlighted within the system include:

• The use of complex legislation which can be a barrier for unrepresented and/or vulnerable users of the system.
• Ongoing hardship and economic burden caused by lengthy litigation in Court.
• The lack of support available for children including their ability to express their own views.
• Non-compliance with parenting Orders and, as a result, ineffective enforcement of parenting Orders, which can result in parents or carers accumulating significant costs to ensure Orders are complied with.
• Insufficient responsiveness to family violence, child abuse and child neglect allegations.
• Shortage of appropriate court process and services for Aboriginal and Torres Strait Islander families.

But what are they doing to fix this?

Proposed Amendments to the Act

In determining what changes were required to the Act, the Government looked to reports by the Australian Law Reform Commission and the Joint Select Commission and noted their concerns and recommendations.

Refining the ‘best interests’ of the child principles

In parenting matters, the Court is required to consider a variety of factors in order to establish what is in a child’s best interests. These factors are set out in section 60CC of the Act and currently comprise of:

• Two primary considerations (primarily protection from harm and maintaining a meaningful relationship with both parents); and
• There are also 13 additional considerations including the views expressed by the children and a number of other factors; and
• Any other fact or circumstance that the Court thinks is relevant.

The amendments to the Act seek to remove the complexity of section 60CC, and refine the factors to 6 core considerations in total. The amendments are suggested to focus on promoting children’s safety and amplifying the focus on children’s developmental, psychological and emotional needs.

Abolishing the presumption of ‘Equal Shared Parental Responsibility’ and ‘substantial and significant time’ considerations

The current legislation applies a presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility for them, unless there are reasonable grounds to believe there has been abuse or family violence of the child (section 61DA of the Act). This means that both parents have an equal input in to the long term decisions affecting the child/ren’s welfare, care and development, such as their schooling, religion, change of name/s etc.

If the presumption applies, the Court is then required by section 65DAA to consider whether it is appropriate for an Order that the children spend equal time with their parents or party of significance, or substantial and significant time with their parents or party/ies of significance such as grandparents or stepparents.

The proposed Amendment Bill seeks to remove this presumption and the consideration of equal or substantial and significant time. This is due to reported evidence that such presumption provides a misconception about parenting arrangements – that parents are entitled to equal time with their children – and in turn may result in agreement to unsafe arrangements or encourage litigation, based on an incorrect understanding of their rights to equal time.

The change to the legislation is suggested to ensure that any parenting matters facilitate what is in the best interests of the child and focus on the child’s needs and wants, rather than a parent’s ‘entitlement’ to shared care.

 Allowing a child’s voice to be heard

In accordance with the Act, in most parenting matters, an Independent Children’s Lawyer is appointed to represent and act on behalf of the children’s views and in their best interests. However, there is no requirement for the Independent Children’s Lawyer to meet with the child. It is difficult to comprehend how a child’s views can be voiced or protected if the child has not met their lawyer.

The amendments seek to change this. The proposed amendments seek to introduce a requirement that, if an Independent Children’s Lawyer is appointed, they must meet with the child/ren and provide the child with the opportunity to express their views. This is a positive amendment, as it better enables the involvement of children in family law matters and the expression of their views/wishes while protecting their wellbeing and safety.

Our Thoughts

Aston Legal Group welcomes any positive advancements to the family law system within Australia.

 We believe that in parenting matters, focus should be on what is in the child/ren’s best interests, considering their psychological, physical, intellectual and developmental needs. The proposed amendments by the Government seek to focus heavily on these issues. Ultimately, it is difficult to comment on whether the changes will be good or bad for our family law system without having them in place. Aston Legal Group is hopeful that these amendments will be beneficial to the development of the family law system and look forward to evaluating their success once implemented.

If you are going through a separation and need some guidance on your next steps, contact our office at (03) 8391 8411 or via our website enquiry page to speak with one of our experienced lawyers.

[1] Australian Government, Attorney-General’s Department, Exposure Draft – Family Law Amendment Bill 2023, Consultation Paper, January 2023, p 4 <https://consultations.ag.gov.au/families-and-marriage/family-law-amendment-bill/user_uploads/family-law-amendment-bill-2023-consultation-paper.pdf>