Understanding the Proposed Changes of the 2023 Australian Family Law Reform

In January 2023, Attorney-General Mark Dreyfus released the draft changes proposed for amending the Family Law Act 1975.

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.

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.

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.

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.