Upcoming changes to the Family Law Act and Implications for Parenting Matters

On 29 March 2023, the Commonwealth Government tabled the Family Law Amendment Bill 2023 (FLAB) in Parliament. This is the first significant reform of family law in Australia since the creation of the Federal Circuit and Family Court of Australia (FCFCoA) and the most far-reaching since the amendments in 2011 which brought greater recognition of the impact of family violence on parenting and property matters.

Since 2006, parenting decisions have proceeded on the basis that awarding equal shared parental responsibility (ESPR) to both parents is in the best interests of children in cases where both parents are able to co-parent effectively and where there are no allegations of family violence.

The FLAB is expected to pass Parliament when it sits later this year. The main changes that FLAB proposes are:

1. A streamlined legislative framework for making parenting orders;
2. A simplification of the ‘best interests of the child’ that includes a consideration of what arrangements best promote the safety of the child and the child’s primary carer from family violence;
3. The removal of the presumption of ESPR and substantial and significant time provisions;
4. The amendment of definitions relating to ‘culture’ and ‘family’ for First Nations peoples; and
5. The enhancement of case management and procedure in the FCFCoA to prevent vexatious litigants.

In general, the reforms to the family law system and courts have been welcomed by the profession and academics alike, who point to the increased prevalence of litigants in the system where risk factors such as family violence, drug abuse and mental health issues make an amicable out-of-court settlement inappropriate. The FLAB aims to recognise the complexities that arise in matters where these risk factors are in issue, providing a more robust legislative pathway, where a?“one-size fits all” approach is not appropriate.

Article written by Adrian Majstorovic of our Sydney office.