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There has been a surprising new development in the process of reforming the Australian family law system.  The Albanese Government has this week released a draft Family Law Amendment Bill and invited feedback from stakeholders, including the community.  The draft bill at long last implements recommendations from the most recent family law inquiries.  If you have any interest in the way our family law system works, this is a great opportunity to make your opinion heard on the changing law–but be quick as the consultation phase ends on 27 February.

Just recently we wrote about the directions for reform in terms of improving the system for children, and it appears the Albanese Government is now prepared to make serious moves in this and a number of other areas where reform is desperately needed.

Parents who end up in litigation represent only a fraction of all the family law disputes that occur in Australia, with most matters being resolved outside the court system.  While the legislation is intended to benefit parties in litigation, it is also expected that the improved laws will provide better guidance and a more child-focused framework to all parents working out parenting arrangements.

Simpler “best interests” factors

Six new factors are proposed to replace the current range of complicated primary and additional factors in the Family Law Act 1975.  These will be:

  • what arrangements will 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 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.

There is a proposed additional best interests factor for Aboriginal and Torres Strait Islander children that recognises the importance of children staying connected to their culture, family, community, country and language.

The draft legislation also introduces a requirement for independent children’s lawyer to meet directly with children.  The new laws would also increase judicial discretion to appoint ICLs in Hague Convention matters.

Removing the presumption of equal shared parental responsibility

Some of the changes are likely to provoke intense debate over the coming weeks.  One of the most controversial proposals will no doubt be the plan to remove the presumption of equal shared parental responsibility.  This presumption, introduced in the Howard Government era, has been widely misunderstood as literally meaning 50:50 shared time, and it’s thought that that misunderstanding has led to inappropriate and even dangerous outcomes for some children.  Standby to hear in the media from men’s rights groups on how this will now marginalise fathers–but rest assured that is not what the new legislation is all about.

It is currently the case that courts can order equal time for parents, or a different division of shared time, or no time with a parent, all depending on the particular circumstances of a matter.  And this is not going to change.  What will change is the removal of a starting point of equal shared parental responsibility, which has been very confusing for not only parents but even professionals.

Regulating family report writers

This is another important aspect of reform.  There has also been a lot of concern over the years regarding the regulation of family report writers.  The draft bill also intends to improve and ensure the competency and accountability of family report writers with a new regulatory scheme.

Improvements on handling compliance and enforcement of orders

The laws around consequences of not complying with orders will be made simpler and easier to understand. (You might also like to read our blogs on the large scale research project on compliance and contravention currently being undertaken by ANROWS – part 1 and part 2.)

Helping those in family violence situations

Along with the safety of kids being emphasised in the wording of the new “best interests” factors, the courts will have improved ways to protect the vulnerable from protracted adversarial litigation.

To this end, the courts will have two new powers that will prevent abusive partners from using the court system to continue perpetrating abuse.  This includes a new “harmful proceedings order” provision and a new “protected confidences” provision.

Currently, the courts have a power to stop people filing “vexatious” applications, but this has been based around those who have a history of frequently instigating court proceedings.  Now, such a ban will be able to be applied even if there is no such existing history, in circumstances where it would be harmful to the vulnerable party or the children.

The second provision relates to confidential medical or counselling records.  Currently, parties in proceedings can seek to subpoena records of the other party and have them admitted into evidence.  Under the draft laws, this can only occur in certain circumstances.  Further, the onus will be on the party seeking to admit the records to prove to a court that the disclosure will not have a harmful impact on the other party.  The new laws will, however, allow a party to consent to the admission of their records, as they may sometimes wish to do.

What about existing orders or current applications?

If you’re concerned about whether the new legislation will affect your existing parenting orders, it’s important to know that existing orders will not be affected.  It will continue to be the case that existing orders can only be changed by a new parenting plan made by you and your co-parent or the courts (and this can only occur if it’s shown that there is a significant change in circumstances).

And if you currently have an application before the court, it’s likely your matter won’t be affected either.  Only proceedings taking place after the new legislation is introduced (expected later this year) will have the new laws applied to them.

Want to give your views on the draft legislation?

If you have any comments on the proposed changes, complete the consultation survey or making a submission before 27 February 2023.  You can do this here.

Do you need assistance with a family law matter, whether parenting or property settlement arrangements?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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