The Federal government has announced changes to the family law system that claim to be more focused on children and their safety. Attwood Marshall Lawyers Senior Associate Carlu Booth takes a closer look at the proposals to see if they go far enough.
The Anthony Albanese Federal Labor government has published a draft Family Law Amendment Bill 2023, which aims to simplify the judicial process for separating families, making it safer for children and helping parties avoid protracted litigation.
The changes, which were unveiled on 30 January, have been designed to ramp up the protection of those most at risk of family violence, including children.
What is being changed?
The government intends to do away with the whole host of primary and additional factors that courts currently consider for custody arrangements, as well as the principles and presumptions that guide them. In their place, six simple factors of “best interest” will be introduced for the courts to decide the parenting arrangements for each child.
Judges will need to consider the child’s safety, the ability of each parent to care for them, whether the child benefits from the relationship with their parents, and the child’s own views on the custody arrangements in dispute.
In another big move, the presumption that both parents are considered equally, known as the “equal shared parental responsibility” provision, is set to be repealed. The provision is often misunderstood, the Attorney General’s office said when it announced the changes, and that confusion can draw out litigation and conflict among families. Instead, the focus will be put on the best interests of the child or children at the heart of the family conflict.
If the draft legislation is passed, the following changes will also be enacted:
- Independent children’s lawyers (ICLs) will be required to meet directly with children when they are appointed,
- Judges will have more discretion to appoint ICLs in cases involving the Hague Convention on the Civil Aspects of International Child Abduction,
- The courts will have more power to protect parties and children from the “harmful effects” of protracted and adversarial litigation,
- The definition of a “member of the family” that reflects Aboriginal and Torres Strait Islander concepts will be included in the Family Law Act,
- Provisions for child-related orders will be simplified, and finally,
- The government will be able to set up regulatory schemes for family law report writers.
Rationale behind the overhaul
The draft changes are based on recommendations from the 2019 Australian Law Reform Commission. They have also come about as part of the government’s response to the 2021 Joint Select Committee on Australia’s Family Law System.
Both inquiries shone a light on serious problems that have been weighing down the family system for years, including significant delays of family law matters proceeding through the courts, inaccessible support services and inadequate protection for people at risk of domestic and family violence.
The latest reforms come one year after the merger of the Family Court of Australia and the Federal Circuit Court, making the new Federal Circuit and Family Court of Australia. That merger was aimed at resolving a backlog of cases awaiting judicial decisions, and it also boosted the number of family court judges, registrars and child court experts operating in the judicial system.
The government announced in its 2022-23 budget that it would dedicate nearly $88 million over four years to expand its approach to managing family safety risk in the courts to 15 Federal Circuit and Family Court of Australia registries, nationwide.
It is envisaged, and certainly hoped, that these overhauls of the legal system will lead to a positive change in parenting and family law matters in the future.
Attwood Marshall Lawyers – helping families resolve disputes with as little conflict as possible
Attwood Marshall Lawyers have a dedicated team of family lawyers who practice exclusively in this complex and highly emotional area of law. We are experienced in children and parenting matters, as well as helping people navigate divorce and separation, negotiate property settlements, draft binding financial agreements and help people in domestic and family violence situations.
It is our aim to try to resolve matters at the earliest opportunity to reduce costs and allow all parties involved to move on with their lives.
If you need assistance with a family law matter, please contact our Family Law Department Manager Donna Tolley on direct line 07 5506 8241 or email firstname.lastname@example.org. Alternatively, you can call our 24/7 phone line any time on 1800 621 071.