Proposed Amendments to Family Law legislation

The Federal Government have proposed significant amendments to the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia Act 2021 (Cth) with a proposed focus on delivering safer and simpler resolutions in parenting matters and ensuring confidence in the Family Law system.

The Amendment Bill addresses the recommendations as set-out in a review of the family law system conducted by the Australian Law Reform Commission in 2019, and various reports of the Joint Select Committee on Australia’s Family Law System conducted throughout 2019, 2020 and 2021.

The challenges that have largely been identified include inadequate protection for victims of family violence, court delays, prolonged litigation, and a lack of support services (or access to same).

Section 60CC of the current Act sets out the 2 primary considerations and 13 additional considerations that the Court is to take into account when determining the best interests of a child.

The proposed amendment narrows the factors to a supposedly simplified 6.  This writer remains sceptical that the shorter (possibly more ambiguous) list does not actually change anything; it is merely a moving of the goal posts.

A presumption of shared parental responsibility currently exists, which requires all long-term decisions regarding a child’s care, development and welfare such as education, medical treatment, and religious practices to be made jointly. This is not the same as equal-care which is often very confusing for litigants. The proposed amendment seeks to remove the presumption and to consider the best interest of the child being at the forefront of decision making. This will take into account the past and present practices of each family and the role of the primary care-giver to date.

Additionally, the proposed amendments seek to legislate the common law rule encapsulated within Rice & Asplund – that a significant change of circumstance must have occurred to warrant the Orders being varied or set aside. The basis for adopting this rule into the legislation is to deter vexatious parties re-opening litigation. The writer queries how such a deterrent marries into a parties’ right to access justice where it is genuinely required.

Division 13A of the current Act deals with the consequences whereby a party has failed to comply with an Order of the Court relating to parenting matters. The proposal is to simplify this section; to make it clearer and more straightforward.

The proposed amendments seek to expand the definition of ‘relative’ to ensure the inclusivity of Aboriginal and Torres Strait Islander concepts of family and kinship.

The Court must also consider an Aboriginal or Torres Strait Islander child’s right to enjoy their culture, and having the opportunity to connect with that culture, their family, community, country, and language.

The Court is often assisted by Expert Witness reports such as Family Assessment Reports or Child Impact Reports in reaching a decision that is in the best interest of the child. As set out at section 60CC (3) (a) and 60CD, the Court is required to consider any view expressed by a child and placing greater weight on such views based on the child’s level of maturity.

The proposed amendments provides the child with an opportunity to be involved in the decision making process and express their views. This will be achieved by expanding the requirements and role of the Independent Children’s Lawyer (“ICL”) to meet with a child (if they are aged 5 years and over). Notwithstanding this fundamental change, the proposed amendment does not provide that every child will be appointed an ICL; this remains at the discretion of the Court.

Under the proposed amendment, the Court will have the power to prohibit a party from instituting proceedings without the leave of the Court if:

• The proceeding s are considered vexatious in nature; or
• The other party, or child/ren, would suffer harm as a result of the proceedings.

Evidence will be inadmissible if it is a communication that has arisen in a professional capacity; i.e., in the context of providing a health service, unless consent has been provided (such as medical or counselling records).

To reflect modern technology usage, the term “communicate” has been expanded to capture information sharing platforms such as facebook, Instagram, twitter, and other social media sites.

We await and follow (with some scepticism) the progression of the Bill throughout 2023.

Kate Bishop, Legal Practice Director

Arianna Van de Water, lawyer

April 2023