Proposed Amendments to the Family Law Act (Cth) 1975

After going through a separation, the Australian family law Court system can seem daunting, confusing and expensive. The Australian Government aims to ensure that the system is as accessible and straightforward as possible.

To achieve this, an enquiry has been made into the current family law legislation and framework. Based on this enquiry, several recommendations were made to the government. To enable these recommendations, an Exposure Bill has been created with several suggested amendments to improve the current family law. This Bill aims to centre the best interests of the child, focus on the need to address family violence, child abuse and neglect and to simplify the current legislation.

 

Amendments to the Framework for making Parenting Orders

The current legislation contains a section that outlines many factors that the Court must consider when considering the parenting orders that will be in the best interests of the child. The Court views this section as the most important piece of legislation to consider when making these orders.

As it currently stands, this section contains two primary considerations, 13 additional considerations, and further allows for the Court to consider ‘any other fact or circumstance that the Court thinks is necessary.’ The report prepared found that these factors are confusing and contribute to lengthy and expensive Court proceedings. The Exposure Bill aims to simplify this section by removing the structure of primary and additional considerations, and instead focussing on child safety, parenting capacity and parent/child relationships.

To do this, the Exposure Bill reduces the relevant considerations to a list of 6 factors including:

  • the ‘arrangements [that] best promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm’; 

  • ‘the benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so’; and

  • ‘the developmental, psychological and emotional needs of the child’.

The Exposure Bill also includes provision to recognise the importance of Aboriginal and Torres Strait Islander culture being considered in determining the child’s best interests. This would require the Court to consider ‘the child’s opportunities to connect with, and maintain the child’s connection to, the child’s family, community, culture and country’.

The current legislation also contains a presumption of equal shared parental responsibility, which means that the Courts must start all parenting matters with the presumption that both parents are to share equal responsibility for the major long-term decisions in the child’s life.

The report advised that this provision has caused confusion, particularly amongst those people representing themselves. Therefore, the Exposure Bill seeks to remove this presumption, which would cause the Courts to prioritise the best interests of the child. Should this presumption be removed by the Exposure Bill, the Courts can choose to make an order of shared parental responsibility, or to order that only one parent have parental responsibility. The Court would make this order based on the best interests of the child, rather than a pre-existing presumption.

The Exposure Bill also seeks to remove the existing presumptions applied by the Court in relation to the time that the child must spend with each parent. Instead, any time ordered will be based solely on the best interests of the child.

The Exposure Bill also provides for additions to the current procedures for the re-litigation of final parenting orders. This would include two systems for final parenting orders to be changed.

Firstly, the parents can make a parenting plan that would then override the final orders. 

The alternative is that they can seek amended orders through the Court process. For the Court to decide that past parenting orders should be re-litigated, they must consider whether there has been a significant change in the child’s circumstances. Only if there has been a significant change in the circumstances surrounding the child can a parent apply for the Court to reconsider final parenting orders. This legislation would act to reduce the number of applications to re-litigate finalized parenting orders within the Courts.

 

Enforcement of Child-Related Orders

This section of the Exposure Bill aims clarify the consequences of non-compliance with final family orders. This section would allow the Court to impose punishments for a breach of parenting orders that include but are not limited to make up time with the child, a variation to the parenting orders, compensation, a fine and imprisonment.

The amendments will also allow the Court to make an order for makeup time, without first making a finding as to whether a contravention has occurred. This clarity to the legislation would ensure that these matters are finalized far quicker and reduce the costs to parties.

The Exposure Bill also states that Courts should make an order that the party that breached the parenting order should be made to pay the legal fees of the other party for the contravention proceedings.

Further to this, the amendments dissolve the current separation in the legislation between serious and less serious contraventions, instead providing for the Court to use its discretion in relation to the seriousness of any breaches.

 

Definition of ‘Member of the Family’ and ‘Relative’

Similar to the inclusion of the consideration of an Aboriginal or Torres Strait Islander child’s culture being included in the proposed amendments, the Exposure Bill also includes a section that would expand the definition of ‘member of family’ and ‘relative’. This expansion would act to include Aboriginal and Torres Strait Islander notions of family and kinship. This would expand the scope of numerous sections throughout the legislation to apply to these various kinship relationships. For example, this would act to expand the scope of those who can commit or be a victim to family violence under the legislation.

Independent Children’s Lawyers

In certain cases, an Independent Children’s Lawyer (ICL) is appointed by the Court to represent the best interests of the child to the Court. The proposed amendments include a provision that would require an appointed ICL to meet with the child and provide them with the opportunity to express their views in relation to the proceedings. At present, this obligation does not exist.

 

Malicious Proceedings

The Exposure Bill includes proposed amendments that would give the Courts a power to restrain parties from filing excessive family law applications without first getting the permission of the Court. The intention of this amendment is to prevent further harm to the parties by preventing these excessive or malicious proceedings. The current legislation focusses on the intent of the applicant, rather than the harm to and impact upon the respondent.

To refuse a family law application, the Court must be satisfied that there are reasonable grounds to believe that further proceedings would cause psychological harm, major mental distress or behavior that impacts a parties ability to care for the child to the respondent should the application be allowed.

 

Protecting Sensitive Information

Within Court proceedings, either party can issue subpoenas to bodies such as the police, health care providers, department of child safety and psychologists. Particularly in relation to psychologists and health care providers, these subpoenaed documents can reveal sensitive and personal information about either party. Therefore, the Exposure Bill seeks an amendment to the current legislation that would make the party requesting the confidential information to prove to the that the release of this subpoenaed information will not have a harmful impact. This amendment would act to reduce harm to those within the family Court system, as well as improving the public’s confidence in these confidential services.

 

Communications of Details of Family Law Proceedings

This amendment aims to modernize and streamline the language used within the current legislation. The current legislation prohibits the public communication of details in relation to family law cases that would identify a party to proceedings without the Court’s authorization. The interpretation of the current legislation leaves this open to be interpreted as applying to traditional forms of media such as newspapers and radio. The amendment to this section will expand it to include digital media such as online journals and social media.

 

Conclusion

In conclusion, it can be seen that the main goals of this Exposure Bill are to simplify the current Australian family law and ensure that the paramount concern of the both the Courts and the parties is that of the child’s best interests. The report noted the costly and adversarial nature of the current family law Court system and the associated negative consequences in proceedings for both parties and children involved. Therefore, it is the mission of these proposed amendments to minimize these issues and clarify the existing legislation.

 
Family LawGuest User