Family Law Amendment Bills 2023

Parliament passed two significant family law bills on 19 October 2023.

Although the bills have not yet received Royal Assent, this usually only takes a few weeks. The two new laws are meant to make the family law system more straightforward and also safer for separating families.

The First Bill

The first bill is the Family Law Amendment Bill. This bill places the best interests of children at the forefront of every parenting decision, whether you are in the legal system or not. Additionally, it aims to streamline the family law system, making it more user-friendly.

Most significantly, the presumption of ‘equal shared parental responsibility’ has been revoked. There was an onus on parents having to show that the presumption should not apply. So, when they could not show this, they then had to consider equal time too. A lot of parents found this confusing. They believed that equal shared parental responsibility meant a right to equal shared time. This led parents to enter into equal-time arrangements when it was not appropriate or in the children’s best interests, for example, in cases of family and domestic violence or for very young children and babies when this goes against an infant’s optimum development.

Under the new legislation, there will be a greater focus on the individual needs of each child. Once the new law is in place, parenting arrangements must exclusively consider the child’s best interests as the paramount factor.

In addition, the first bill will also overhaul:

  1. The factors when considering what is in the best interests of a child. These factors will be clearer and shorter. Under the previous legislation, there were two primary factors and fourteen (!) additional factors.
  2. Providing guidance when a parenting order can be changed, specifying a list of factors when it is in a child’s best interests to re-open a parenting matter.
  3. Children’s wishes and views will be included in any decision-making by requiring the Independent Children’s Lawyer to communicate directly with the children. The Independent Children’s Lawyer will then share the children’s views with the parents and the court.
  4. Clarifying and making other areas of law simpler, such as:
  • How to enforce parenting orders when one party is not compliant;
  • Protecting people better in the family law system when it comes to domestic and family violence and not allowing perpetrators using the court’s processes to commit further acts of abuse;
  • When you can share details of family law proceedings;
  • Including a separate factor to continue connection to culture for Aboriginal and Torres Strait Islander children (this is not a new factor but is now a stand-alone factor to emphasise its importance).

The Second Bill

The second bill is the Family Law Amendment (Information Sharing) Bill 2023.

This Bill has been introduced to give the courts critical insights into family safety risks. This will ensure a strong focus on protecting the well-being of children and families, especially when there are concerns about child abuse, neglect, or family violence.

Essentially, the bill provides the court with the ability to make information-sharing orders. This means that the court can request and access data from police, child protection and firearms agencies directly in matters where children’s safety is at risk. The court can make orders for documents only or for information and documents.

Currently, all parties in family court proceedings are given the opportunity to voice any concerns for any risk factors in their matter by filing a Risk Assessment form that is kept confidential from the other party.

With the new legislation, a court can make an information-sharing order if any allegations are made. The court can make these types of orders at any time during the court process so that it can use the most current information available.

The lawmakers recognise that such information is often delicate if not confidential. As such, the bill aims to ensure that the information is shared safely and sensitively or who it can be shared with.

In conclusion, the principle remains the same in that the best interests of children are paramount.

How much will change in real practice is difficult to predict. At least, survivors of family and domestic violence should be better protected with more safety measures in place and the courts will be given more power to make orders to obtain information from state and territory authorities that are relevant to family law matters.

Further, there should be fewer orders made for equal shared time where equal time is not appropriate, especially in matters where families are at risk from family violence.

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