On 19 October 2023, the Australian Parliament passed two significant pieces of legislation in an attempt to reform Australia’s family law system. The two Bills were passed to the Governor-General for assent and most of the changes will come into effect on 6 May 2024. This legislation has been designed to make Australia’s family law system safer, simpler and more accessible.
The Family Law Amendment Bill – changes affecting parenting disputes
The first Bill to pass through Parliament was the Family Law Amendment Bill 2023. This aims to reinforce the importance of a child‘s best interests in decision-making about parenting issues, both inside and outside of the courtroom.
Perhaps the most contentious part of this Bill is its removal of the current presumption of equal shared parental responsibility in relation to parenting issues in section 61DA of the Family Law Act 1975 (Cth) (the Act).
Until these changes commence operating in May 2024, where a parenting matter is being determined, the Family Law Act 1975 imposes a presumption that the child’s parents should have equal shared parental responsibility (i.e. an equal say in determining long term parenting issues). The exception is where there has been family violence or child abuse, or the court otherwise considers that the parents having equal shared parental responsibility would not be in the child’s best interests.
Under the new laws, all parenting decisions, including the allocation of parental responsibility, must be considered against the best interests of the child.
In addition to ensuring that the best interests of the child guide all decision-making about parenting orders, the new legislation also contains changes to improve the functionality and efficiency of the court’s processes, including:
- giving the Government powers to regulate family report writers;
- provisions relating to compliance and enforcement of child-related orders;
- requiring that where the court considers that a child should be independently represented by an Independent Children’s Lawyer (ICL), the ICL must meet with that child. The ICL must give the child an opportunity to express their views (except if the child is under 5 years of age or does not want to meet with the ICL);
- setting out the court’s powers in proceedings that it considers harmful, vexatious or without merit. If proceedings may have been instituted for a wrongful purpose or may result in harm to a party or a child involved in the proceedings, the court can at any stage dismiss all or part of the proceedings;
- in matters heard under the Hague Convention on the Civil Aspects of International Child Abduction, ensuring that the child’s voice can be heard; and
- inserting a definition of the term “member of the family” into the Act incorporating Aboriginal and Torres Strait Islander concepts of kinship and family.
Family Law Amendment (Information Sharing) Bill 2023 – enhancing family violence protections
The second Bill to pass through Parliament is the Family Law Amendment (Information Sharing) Bill which amends the Act to enable sharing between the Family Law and Family Violence and Child Protection Systems. These legislative changes will come into effect on 6 May 2024.
These reforms aim to make information relating to child abuse, family violence and neglect risks accessible to the Federal Circuit and Family Court of Australia when it is determining parenting matters.
More family law reforms in the pipeline
The above two Bills, and subsequent legislative changes, are merely the beginning of a suite of family law reforms aimed at enhancing separated couples understanding of the decision-making framework the court uses in family law matters.
The Family Law Amendment Bill (No.2) 2023 is currently out for consultation and yet to be presented to Parliament. It seeks to introduce further reforms in:
- property settlement;
- the court’s procedures and case management;
- children’s contact services; and
- various other general provisions.
Where to now?
Contact us if you have any concerns or questions about how these reforms may impact you or would like free initial telephone advice about your family law matter.
