Whether you’ve been involved in a family law matter before or not, you may have heard the criticisms of the Australian family law system. Australia’s family law system is often described as being slow and complicated.
The complexity of the system can make those involved in family law proceedings feel overwhelmed, stressed, and uncertain of their options and their future.
In an attempt to improve the current system, a number of changes have been proposed. These changes have been designed to remove some of the critical complexities of the system, which may help to improve the speed with which matters can be handled, as well as focus on the importance of children in the Australian family law system.
To help you understand the family law reform, we’ve summarised some of the key proposed changes and what this could mean for you.
Why have changes been proposed?
Over the last few years, a number of inquiries into understanding how the current Family Law Act works have taken place. These inquiries, including a major inquiry by the Australian Law Reform Commission (ALRC) in 2019, have resulted in key recommendations being put forward about how the system could be improved.
These recommendations relate to a variety of areas; however, two prominent ones are about the complicated nature of the family law system, and how important issues relating to children and parenting arrangements are currently resolved.
What are the proposed changes?
In an attempt to create a simpler system and ensure children’s best interests are truly at the centre of decision making, some of the proposed amendments include:
- How the individual needs of each child should and will be the focus of decision-making;
- The principles that determine what is in “the best interest of the child”;
- More inclusive definitions of family, particularly for aboriginal and Torres strait islanders;
- Providing greater clarity regarding the changing of parenting orders;
- Ensuring children’s views are heard;
- Enforcement of parenting orders;
- Making it clearer about sharing the details of family law matters; and
- New court powers that will aim to protect people from harmful or excessive litigation.
What do each of these potential amendments mean? We’ve put together a short summary of each of these points below:
How the individual needs of each child will be the focus of decision making
Under the current system, the true needs of the child are often unintentionally overshadowed by a variety of factors, including the presumption of “equal shared parental responsibility”. This presumption is commonly misunderstood as meaning that each parent has the right to an equal amount of time with the child. The real definition of the presumption of equal shared parental responsibility is that the parents are required to consult with one another when making the major long-term decisions that affect their child’s life, such as education and healthcare matters.
The misunderstanding of the definition of equal shared parental responsibility can lead to parents misinterpreting their entitlements, making it more difficult to come to an agreement of appropriate arrangements for their child, which can increase parental conflict and lead to litigation or prolong current litigation. This does not put a child’s best interests first.
Decisions regarding children should be based on the individual needs of the child the decisions affect. However, the current presumption of equal shared parental responsibility means that there is the overarching assumption that it is in the child’s best interests for both of their parents to be making decisions for them, when in reality, this may not always be the case. Many matters that reach the court involve instances of abuse and/or domestic or family violence.
Under the proposed changes, the presumption of “equal shared parental responsibility” along with the related provisions regarding the child spending equal time with each parent, will be repealed. The removal of this presumption, along with the proposed changes to the factors that help to determine a child’s best interests (which we will summarise next), help to guide the court, family lawyers, legal professionals, and parents to put the unique needs of the child first.
While the presumption is being repealed, orders for shared parental responsibility and equal time could still be ordered by a judge, but these decisions would be based on the best interests of the child.
Simplified factors to determine what is in “the best interest of the child”
To help guide the court, lawyers, legal professionals, and parents when making decisions regarding children, the proposed reform includes an update to factors that need to be taken into consideration when determining what the best interests of the child actually are.
According to Attorney-General Mark Dreyfus, family law matters involving children, like custody arrangements currently “require the court to consider two primary factors and 13 additional factors and be guided by four objects, five principles and one presumption”. With so many factors to take into consideration, it’s understandable how the current family law system is seen as complex.
Under the proposed amendments, the factors to determine the best interests of the child will be streamlined and reduced to six key factors, including:
- What arrangements would best promote the safety of the child and each of the child’s parents;
- Any views expressed by the child;
- The developmental, psychological, and emotional needs of the child;
- The capacity of each parent to provide for those needs;
- The benefit to the child of being able to maintain a relationship with both of the child’s parents, and other people who are significant to the child, where it is safe to do so; and
- Anything else that is relevant to the particular circumstances of the child.
These factors have been simplified in an attempt to not only help in a legal setting but also provide guidelines for parents who are separating or separated.
For Aboriginal and Torres Strait Islander children, the factor of ensuring parenting arrangements are made that allow for children to have a connection to their culture is included as a standalone additional factor. While it is technically not a new factor for determining the best interests of an Aboriginal or Torres Strait Islander child, its inclusion is to show the importance of this factor.
More inclusive definitions of family, particularly for Aboriginal and Torres strait islanders
The new reforms propose to update the definition of “member of the family” to widen the scope to include the Aboriginal and Torres Strait Island concepts of family and kinship. This helps to strengthen the importance of the Aboriginal and Torres Strait cultural connection.
Providing greater clarity regarding the changing of parenting orders
If there have been significant changes in circumstances since a parenting order has been made, it is possible to apply to have changes to these orders made. The proposed reform outlines the factors that a court should use to consider whether a parenting order should be changed. These factors have been determined based on case law.
Ensuring children’s views are heard
Currently, in family law matters that involve children, an Independent Children’s Lawyer (ICL) may be appointed to ensure that the child’s welfare and views are represented in the case. This helps to avoid a child being directly involved in court matters and can be an opportunity for the child’s views to be heard. Independent children’s lawyers do not act on the instruction of the child, rather they take their thoughts into consideration when determining the best interests of the child.
An ICL isn’t appointed in every case involving a child and they don’t necessarily have to meet with the child to determine their best interests.
Under the proposed changes, if an ICL is involved in a matter before the courts, they will be required to meet with the child and give the child the opportunity to have their views heard. There are exceptions to this, however, if the ICL does not meet with the child or fulfill a duty of theirs, the court will need to determine that this is the right course of action.
Enforcement of parenting orders
To help parents understand the importance of complying with parenting orders, the proposed amendments include updates to simplify sections of the Family Law Act that deal with the enforcement of child-related orders.
The ALRC report highlighted how “needlessly complex” some of these sections are. The simplification makes them easier for not only the parties to understand but also for the courts to apply to the relevant situations.
As these orders are to be made in the best interests of the child, by making the importance of complying with these orders and the consequences of not complying with them easier to understand, it is helping to protect the child’s best interests.
Making it clearer about sharing the details of family law matters
Section 121 of the Family Law Act deals with the protection of the identities of those who are involved in court proceedings. It prohibits the sharing of information, including the publication of information, that could identify the people involved. The consequences of sharing this information can be significant.
As part of the ALRC inquiry, it was highlighted that there is confusion around these protections. Under the proposed reform the actions that are and are not acceptable are clearly identified. For example, private communication between a family member or friend and a person involved in the proceedings is ok but communicating any details on social media is not.
New court powers that will aim to protect people from harmful or excessive litigation
Prolonged, excessive or unnecessary litigation not only impacts the courts’ ability to perform its duties, but it can also be harmful to the people involved, including children. As part of the ALRC inquiry, they highlighted the concern that family law system may be being misused, particularly by perpetrators of family or domestic violence, for example, through the submission of multiple applications in order to harass, intimidate, threaten, and/or control their former partners.
The proposed changes include new powers for the courts that include stopping a person from filing further family law applications in circumstances where these applications could be harmful to the respondent or a child. Another proposed new power is that the courts could have the power to exclude records that relate to the provision of health services in family law matters.
What do these changes mean for the Australian public?
The proposed reforms of the family law system could have a lot of positive impacts for people who find themselves involved in family law matters.
Many of these changes have been proposed to provide greater clarity on some of the most confusing and complex areas of family law.
For example, the best interests of the child are currently meant to be at the centre of decisions that involve or impact children, however, being able to determine what the best interests are involve considering a wide range of factors. Under the proposed changes, these factors have been streamlined to make this easy to understand.
The greater level of clarity in many areas could also help make it easier for families and parents to resolve conflict and possibly avoid court all together.
In addition to making a number of areas of the family law system easier to understand, the reforms also aim to increase the protection of people and children by providing the courts with additional powers.
The proposed reforms have been designed to reduce the stress and uncertainty that many people experience when involved in family law matters.
When will the changes happen?
At the time of writing – February 2023 – these proposed reforms are still in the early stages and currently the Australian Attorney-General’s Department is consulting publicly on these family law changes until February 27, 2023. The consultation period is to ensure that the proposed reforms are easy to understand and will be able to achieve their intended purpose.
If these family law amendments do become legislation, there will be a 6-month period before the changes come into effect. This period allows professionals in the family law sector and the courts to become familiar with them.
What if I’m involved in a family law matter now?
If you’re involved in a family law matter of any type, including parenting arrangements, separations, divorce, custody arrangements or anything else, we recommend seeking legal advice from a family lawyer. The Australian family law system is complex and it’s not always easy to understand all of your options, but a family lawyer can help you.
At Unified Lawyers, we’re experienced in all types of family law matters and our services are available Australia-wide. We offer a free initial consultation, where you can discuss your situation and get to know us. Book your consultation by calling us on 1300 667 461 or use the button below.