Category: Case Studies

Feedback updated 8 Nov 2023

We asked

“From 30 January to 27 February 2023, we sought feedback on an exposure draft of the Family Law Amendment Bill 2023 (the Bill). The draft Bill proposed a streamlined parenting framework, including by simplifying the ‘best interests factors’ a court must consider in determining parenting arrangements, and removing the ‘presumption of equal shared parental responsibility’ and associated time considerations.

The draft legislation also proposed to:

• introduce a requirement in the legislation for Independent Children’s Lawyers (ICLs) to meet directly with children
• increase judicial discretion to appoint ICLs in matters under the Hague Convention on the Civil Aspects of International Child Abduction
• provide courts with greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation
• provide a definition of ‘member of the family’ in the Family Law Act 1975 (the Family Law Act) that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship
• simplified compliance and enforcement provisions for child-related orders
• create regulation-making powers to enable the government to establish schemes that set requirements for family law report writers
• introduce an express power for courts to exclude evidence of ‘protected confidences’ in family law matters (that is, evidence relating to the provision of health services, such as medical or counselling records)
• clarify restrictions around public communication of family law proceedings.

The release of the draft Bill was an opportunity for the community to provide feedback on the proposed amendments.

We prepared a consultation paper to explain the exposure draft and sought stakeholder views on key issues. We invited submissions in response to the wording of the proposed amendments and, in particular, to the specific consultation questions set out in the paper.

We asked

As a result of the consultation process, a number of important changes were made to the Bill to ensure the reforms best support Australian children and families:

• The Objects provision in Part VII of the Act (relating to children) was amended to make it clear that safety should be specifically considered when ensuring that the best interests of children are met.
• Amendments were made to the factors that the court must consider when determining the best interests of the child to provide clarity and address issues raised by stakeholders in relation to safety considerations, cultural considerations, the consideration of the capacity of each parent to provide for the child’s needs, and circumstances where a parent does not have an existing relationship with a child.
• To address stakeholder concerns about potential unintended consequences associated with the removal of equal shared parental responsibility, changes were made to:

encourage parents to consult each other about major long-term issues prior to court orders being made

> make it clear that the court can make an order for joint decision making for major long-term issues

> clarify the orders that will invoke the requirement for decisions to be made jointly, and

> co-locate the provisions relating to parental responsibility to make the Act more user-friendly.

• Clarifying changes were made to provisions around ICLs to:

> make clear that the exception where an ICL is not required to meet with a child due to the risk of physical or psychological harm only applies where that risk cannot be safely managed

> make clear that if an ICL is not required to perform a duty to meet with a child due to exceptional circumstances, that the court must consider this before final orders are made and not as part of every court event.

• Changes were made to the provisions for harmful proceedings orders and for establishing an overarching purpose of family law practice and procedure to:

> make clear that in harmful proceedings against a party, the court must make an order about whether the respondent is to be notified about any further applications filed

> allow courts to dismiss applications for leave in harmful proceedings cases without an oral hearing or in chambers instead to enable the court to deal with harmful or unmeritorious litigations more efficiently.

> reorder the list of factors in the overarching purpose so that the efficiency of proceedings does not read as being secondary to safety factors.

• In relation to the family report writers provisions:

> references to a ‘designated report’ have been changed to make clear it is a ‘designated family report’ in relation to family report writer provisions

> further detail has been included about who is considered a regulator, to specify who may be delegated powers and functions, and to specify relevant courts for the purposes of exercising regulatory powers and civil penalties.

• The provisions relating ‘protected confidences were removed from the Bill prior to its introduction into Parliament. The government is seeking further views on this issue as part of the consultation process on a second tranche of family law reforms

Further amendments were made to the Bill following the Senate Legal and Constitutional Affairs Legislation Committee Report issued on 24 August 2023 and as a result of further consultation and stakeholder submissions to the committee. These include:

• amendments to the ‘best interests’ factors to ensure the history of family violence, abuse and neglect are considered when determining the arrangements that would promote the safety of the child and their caregivers, and that courts must consider exposure to family violence
• an amendment to give greater clarity to guidance surrounding the stand-alone factor for Aboriginal and Torres Strait Islander children
• clarifying Aboriginal or Torres Strait Islander concepts of family and their obligations to court notifications
• amendments to enable the removal of the higher threshold requirement for consideration of child’s objections to a return order in Hague Convention cases
• amendments to ensure the Bill operates in line with the government’s policy intention to ensure that children’s best interests are placed at the centre of the family law system and its operation
• addition of a review provision
• changes to many application provisions to ensure that the changes apply to all existing court matters on commencement, excluding those where a final hearing has commenced
• removal of the proposed costs provision specific to contravention proceedings to avoid duplication of the court’s discretionary power to award costs in family law matters.

We have published submissions where we have received permission from the author to do so. Some submissions have been redacted to avoid breaching section 121 of the Family Law Act, for privacy considerations and where there are concerns about copyrighted material.

The Family Law Amendment Bill 2023 passed the Senate, with amendments, on 19 October 2023. The House of Representatives agreed to the Senate amendments on 19 October 2023.

The Governor-General gave Royal Assent to the Bill on 6 November, 2023. It is now the Family Law Amendment Act 2023 (Act No. 87 of 2023). Most of the changes to the law will apply from 6 May 2024.”

“Courts will have to consider a history of family violence as one of seven new criteria when new laws scrap the assumption of “equal shared responsibility” in the most significant change to parenting arrangements since 2006.

What’s in the best interests of a child will become the prime consideration in divorce cases when the controversial Howard-era legal presumption that parents have “equal shared responsibility” is abolished.

The seven factors that judges must consider – which have been simplified from the previous list of 15 – include a child’s safety, their views, the benefit of having relationships with both parents, and the child’s developmental, psychological, emotional and cultural needs.

The factors removed from the list include the lifestyle and background of a child and their parents, the attitude to parenthood demonstrated by each parent, how a change in circumstance would affect the child, and the parents’ prior efforts to spend time with the child.

Attorney-General Mark Dreyfus on Tuesday said he would move amendments that aligned with a Senate review – which called for explicitly adding the family violence condition – when the bill reaches the upper house in coming weeks.

But the most significant change will be abolishing the presumption of “equal shared parental responsibility” that separated parents have been entitled to since 2006, when it was introduced by the Howard government to address a historical bias against fathers’ custody.

It meant courts had to start with the presumption each parent gets an equal say in major decisions about their children, and included an associated provision that also required courts to consider time arrangements for children to spend with each parent.

However, the Australian Law Reform Commission found the law was being misinterpreted to mean both parents should see the child for an equal amount of time.

While Australian Institute of Family Studies research says only 3 per cent of separating families have their parenting arrangements determined by a court, the government believes the law serves as a guide to the rest of the families who negotiate their own arrangements.

Family lawyer Jodylee Bartal said Labor’s bill sought to make the first major changes to parenting provisions since the 2006 reforms.

“[The Howard-era reform] was a real shift from the days of the ‘Disneyland dad’, when the non-resident parent would typically see the child fortnightly, on weekends, sometimes in school holidays. It created a bit of a yardstick [around expectations for equal or significant time],” she said.

“These reforms are a positive change for people suffering family violence or coercive control. But for other families, the removal of that yardstick may mean there’s no starting point for engaging in negotiations.”

Bartal said the government’s intention had been to simplify the laws. “But as is often the case, simplifying things adds a bit of uncertainty. There is some concern that removing definitions broadens the potential outcome for families,” she said.

“There’s an increased potential for litigation while the kinks are being ironed out.”

Attorney-General Mark Dreyfus said when introducing the bill earlier this year that the government recognised that “for most children, it is strongly in their best interests to have a loving and nurturing relationship with both parents after separation”.

“The simplified list of best interest factors includes consideration of the benefits to children of having a relationship with each of their parents, where it is safe to do so.

“However, it is necessary to amend the law so it is clear that there is not, nor has there ever been, an entitlement for parents to spend equal time with their child after separation.”

The Senate review also called for stronger safeguards to protect parents from disclosing confidential information, such as personal health records and counselling notes, when there was no value to giving the information.

Greens Senator Larissa Waters, who championed that amendment, said she was glad the government would act to stop subpoenas being weaponised in court.

“Stakeholders have suggested that a blanket ban on access to medical or psychological records is not always helpful, so we support the department’s moves to redraft that section of the bill in a way that ensures [complexities] are taken into account,” she said.

Labor’s bill also introduces a requirement for independent children’s lawyers to meet directly with children, and for the court to consider the right of Aboriginal or Torres Strait Islander children to maintain their connection to their family, community, culture, country and language.

Senator Tammy Tyrell said she would also support the bill. “It puts the focus back on the children, and the best outcome for them. That can only be a good thing. There’s been a couple of reviews that have recommended these changes, and I’m glad they’re being acted on,” she said.

The bill should sail through the Senate with sufficient crossbench support and come into effect six months after it is passed.”