Changes to the Family Law Act

On 30 January 2023, the Federal Government released draft legislation that aims to simplify the Family Law Act and promote the safety of children and parents.

The Family Law Amendment Bill (the Bill) ensures that the best interests of children remain at the heart of the family law system whilst promoting parenting arrangements with a simpler child-focused framework to guide parents involved in proceedings in the Federal Circuit and Family Court of Australia.

The ‘Best Interests’ Factors

The current Family Law legislation, the Family Law Act 1975 (Cth), currently imposes an obligation on the court to consider two primary factors and thirteen additional factors; and be guided by four objects, five principles and one presumption. The reforms within the Bill intend to replace these with six simple ‘best interests’ factors for courts when determining parenting arrangements.

The proposed ‘best interests’ factors include:

1. What arrangements would best promote the safety (including safety from family violence, abuse, neglect or other harm) of the child and individuals who have parental responsibility for the child.
2. Views expressed by the child.
3. The developmental, psychological and emotional needs of the child. Capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carers’ ability and willingness to seek support to assist them with caring.
4. 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.
5. Anything else that is relevant to the particular circumstances of the child.

Proposed Changes to the Presumption of Equal Shared Parental Responsibility

The Bill also aims to clarify the presumption of ‘equal shared parental responsibility’ which is commonly misunderstood and can affect the duration of proceedings. The draft legislation repeals these provisions, placing greater emphasis that the best interests of children are paramount.

The Bill also provides for the following reforms, among other things:

• Codifies the rule established in the authority Rice v Asplund. Where parties seek to review final parenting orders, the Court needs to be satisfied that there had been a significant change in circumstances since the making of the orders and that it is in the best interest of the children for the final parenting orders to be reconsidered;
• Introduces a requirement for Independent Children’s Lawyers (ICLs), when they are appointed, to meet directly with children;
• Increases judicial discretion to appoint ICLs in matters under the Hague Convention on the Civil Aspects of International Child Abduction;
• Provides the Court with enhanced powers to protect parties and children from the harmful effects of protracted litigation;
• Sets out the circumstances in which an individual contravenes a child-related order and relevant enforcement provisions for child-related orders; and
• Establishes regulation-making powers to enable the Government to establish schemes that set requirements for family law report writers.

We understand that parenting proceedings for some parents can be daunting, but we can help.

Aitken Partners is committed to the wellbeing of children during family law events. We have two Independent Children’s Lawyers (ICLs) in the Family Law Team who are experienced in dealing with difficult situations.

Please get in touch with our Family Law Team on 03 8600 6000 for trusted legal advice and support if you require assistance.

Article by Jessica Geraghty