The family law system has long been criticised for its delays, protracted litigation, inadequate support services and a lack of protection for victims of family violence.
This week draft legislation was released that proposes to simplify the Family Law Act to make the process of separation and, in particular, resolving parenting issues simpler, more straightforward and safer for families. The proposed changes are designed to:
Simplify the process of finalising parenting arrangements
Parenting arrangements can be one of the most challenging issues to resolve when separating. The proposed reforms aim to create a simpler, child-focused framework to guide parents when they can agree on parenting arrangements and simplify the court process in cases where parents cannot agree.
Furthermore, the amendments seek to make the circumstances where a parenting order can be changed clearer and put in place measures that make enforcing parenting orders easier.
Replace the presumption of ‘shared parental responsibility’
Currently, when determining the child’s best interest, the court must consider two categories of factors – this is comprised of 2 primary considerations and 13 additional considerations. In addition, the court is also guided by five core principles and the presumption of shared parental responsibility.
The presumption of shared parental responsibility refers to both parents having a role in making decisions about major long-term issues such as health and education. However, recent inquiries have shown the presumption is widely misunderstood to mean ‘shared care’ which is leading to protracted litigation and increased conflict. Under the changes, this presumption would be removed, and all the above considerations would be replaced with six simple factors to determine the child’s best interest.
Better cater to the cultural beliefs of Aboriginal and Torres Strait Islander families
The proposed changes seek to redefine what constitutes a ‘member of the family’ to be inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship. They also include a factor that will ensure maintaining a connection to culture is considered in the best interests of Aboriginal and Torres Strait Islander children.
Place greater emphasis on the wishes of the child or children
Under the proposed changes, greater importance would be placed on the views and wishes of the child. In most cases, it would become a requirement for children to meet with an Independent Children’s Lawyer to ensure their views and wishes are considered.
Protect families from the harmful effects of litigation
Two new powers are also set to be introduced to protect people from the harmful effects of litigation. These include the power to exclude evidence such as medical or counselling records and to stop a person from filing further applications in circumstances where they are likely to harm a party or a child.
When will the changes take effect?
It is unclear when the changes will take effect at this stage, as the draft legislation has just been released for consultation, with submissions open until 27 February 2023. Amendments may be made following the consultation period before the bill progresses to Federal Parliament.