Family Law Amendment Act 2023

The?Family Law Amendment Act 2023 will come into effect on 6 May 2024. This Act introduces some of the most significant parenting changes to the?Family Law Act 1975?(‘the Act’) since the 2006 reforms. ?

As noted in the Explanatory Memorandum, the amendments address the recommendations from the Australian Law Reform Commission’s Final Report No 135 Family Law for the Future – An inquiry into the Family Law System, as well as Joint Select Committee on Australia’s Family Law system which highlighted a number of challenges facing the family law system, including extensive delays, complex and confusing legislation and inadequate protection for people at risk of family violence.

According to the Explanatory Memorandum, the amendment Act will:

1.“Amend the parenting orders framework in the Act to:

a. Refine the list of ‘best interests’ factors, with the aim of reducing complexity and repetition and enhancing the focus on the needs of individual children;

b. Include a standalone ‘best interests’ factor requiring a court to consider the right of Aboriginal or Torres Strait Islander children to enjoy their culture;

c. Repeal the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;

d. Make it clear in what circumstances a court can vary an existing parenting order.

2. Strengthen compliance with, and enforcement of, parenting orders by:

a. Redrafting the provisions dealing with compliance with parenting orders to make them simpler and easier to apply.

b. Ensuring registrars can make orders to compensate for time lost.

3. Enhance the power of the courts to protect parties, and their children, from the harmful effects of litigation through:

a. New case management provisions.

b. A new power for courts to restrain the repeated filing of new applications.

4. Clarify the restrictions on the publication of family law proceedings.

5. Enhance the voices of children in family law proceedings, including by:

a. Codifying a requirement for Independent Children’s Lawyers to meet with and seek the views of children;

b. Removing the restriction on judicial discretion to appoint Independent Children’s Lawyers in proceedings under the Hague Convention (which essentially deals with international child abduction cases).

6.Establish a power for Government to make regulations that would provide standards and requirements to be met by family report writers who prepare family reports; and

7.Make minor administrative amendments to the Family Court and Federal Circuit Court of Australia Act to enhance the administration of that Act.”

As and from 6 May 2024, these amendments will come into effect. After that time we will be involved in and will witness the interpretation and application of the amendments by the family law courts.

Newly separated families and those matters in Court but not yet at Final Hearing, will need to be advised as to the application of these changes to their circumstances with ultimately our view being the amendments should assist those families to navigate their future their being less assumptions and misconceptions about likely outcomes.