Federal Parliament passes new amendments to Family Law legislation – a summary

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At the start of the year in January, the Federal Government circulated to the public an exposure draft about proposed changes they were considering to the Family Law Act 1975 which is the governing legislation with respect to family law disputes. On 19 October 2023, some of those proposed amendments were passed by both houses of parliament. The majority of the changes are to come into force in 6 months on 19 April 2024.

The most significant changes are:

1. The redrafting of Section 60CC and Section 60B which governs how the Court determines what is in a child’s best interests (which is the paramount consideration of the Court when making parenting orders). This is to be reduced in length to six considerations, namely:

a) What arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of:
i. the child; and
ii. each person who has care of the child;

b) Any views expressed by the child;

c) The developmental, psychological, emotional, and cultural needs of the child;

d) The capacity of the carers to provide for the child’s developmental, psychological, emotional, and cultural needs;

e) The benefit to the child of being able to maintain a relationship with both of the child’s parents, and other people who are significant to the child, where it is safe to do so;

f) Anything else that is relevant to the particular circumstances of the child; and

Further considerations regarding violence where the Court must consider:

a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

b) any family violence order that applies or has applied to the child or a member of the child’s family.

2. The insertion of a separate best interests’ consideration to apply for Aboriginal and Torres Strait Island children. The Court would be required to consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the opportunity to connect with, and maintain their connection with, their family, community, culture, country and language, explore the full extent of that culture, and develop a positive appreciation of that culture. There is also to be an expansion of the definition of “relative” to account for the different types of families found in Aboriginal and Torres Strait Island families.

3. The biggest departure from the current law is the abolition of Section 61DA which will mean there will no lo legislation of the long-held rule in Rice v Asplund in the new Section 65DAAA which prnger be a presumption of Equal Shared Parental Responsibility (joint decision-making about long-term issues for a child). The court will still be able to order that parents consult about any long-term decisions for a child and a new Section 61CA will be provide that parents are encouraged to consult each other about major long-term issues in relation to the child but only if is safe to do so.

4. Another major change is that Section 65DAA is also to be abolished. Currently, that section provides that if an order is made for Equal Shared Parental Responsibility the Court must consider making an order that the child spends equal time with both parents or if in the best interest of the child or is or is not practicable, significant and substantial time with both parents.

5. The enshrining in theovides that the Court must not vary a final parenting order unless there has been a significant change in circumstances since that order was made and it would be in the best interests of the child for the Court to vary the order. The law now also includes a list of further considerations the Court may consider when determining whether to vary a parenting order.

6. The provisions relating to contravention applications (which are applications that seek a party to be punished for breaching a parenting order) found in Division 13A of the Act have been amended to simplify the law in this area. The Court can more readily make punitive orders such as fines, bonds, or in the most serious cases terms of imprisonment. There will also be a presumption that the Court order the person who contravened the orders to pay the applicant’s costs for bringing the application.

7. A new requirement for Independent Children’s Lawyers (who are appointed in certain parenting cases to represent children) to meet with the child. Currently, many ICLs do meet the child they represent but now it will be required. There are exceptions including where the child is under 5 years of age or does not want to meet with the ICL or where there are exceptional circumstances such as meeting with the child may expose the child to a risk of harm. The Court will also have greater discretion to appoint ICL in international child abduction cases (Hague Convention matters).

8. A new power of the Court to make a “Harmful Proceedings Order” under Section 102QAC. Such an order would restrain a party from commencing proceedings without leave/permission of the Court if the Court is satisfied that either the other person or a child would suffer harm such as psychological harm, major mental distress, a detrimental effect on the other party’s capacity to care for the child; or financial harm. Currently, the Court can only make a vexatious litigant order which is made when someone makes multiple unsuccessful applications to a Court.

9. Pursuant to the new Section 96, parties and their lawyers will have a duty to act consistency with the overarching purpose of the legislation to resolve disputes justly, quickly, and inexpensively.

10. The redrafting of Section 121 which currently provides that it is an offence to publish or disseminate an account of family law proceedings to the public. That offence is maintained but the redraft will simplify the section and make clear that a communication is not made to the public if the communication is made to a person with a significant and legitimate interest in the subject matter of the communication that is greater than the interest of members of the public generally.

11. Parliament now has the power to make regulations as to the standards and requirements expected of family report writers.

These amendments represent one of the biggest shifts in the family law landscape in some time. Legal advice is essential. If you have a family law dispute, please contact our office at (02) 4944 3322 to make an appointment with Hayden Carr.

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