Australia's family law is facing substantial changes under federal government plans to amend the 1975 Family Law Act, with the new Family Law Amendment Bill to put the best interests of the child at the centre.
Best interests of the child to be central to family law system
Attorney-General Mark Dreyfus has released for consultation draft legislation aimed at making family law simpler and safer for separating couples and their children.
Mr Dreyfus said the Family Law Amendment Bill replaces the "often confusing law around parenting arrangements" and will streamline the process for courts to determine parenting disputes. (Please see Family Law Amendment Bill 2023, February 2023.)
The Bill is expected to go to parliament by the end of 2023.
Factors to be considered in determining custody arrangements
The current framework of factors which must be taken into account when determining custody arrangements are to be replaced with six "best interests" factors which the court must consider in deciding what the best parenting arrangements are for each child.
"Recent inquiries have shown that the presumption of 'equal shared parental responsibility' is widely misunderstood, causing prolonged litigation and conflict. The draft legislation repeals these provisions, making clear that the best interests of children are paramount," Mr Dreyfus said.
Focus on best interests of the child, their safety, views and needs
The reforms remove the current requirement for both parents to be consulted on long-term decisions about their children's future, but retain the current consideration of the benefit to the child of having a meaningful relationship with both parents.
Parents will no longer automatically have to consult each other on decisions like authorising medical treatment. The responsibility for day-to-day matters will be given solely to the person who has physical care of the children at the time.
Under the proposed Bill, the focus is on the safety of the child and their carer, the child's views, the needs of the child and the benefit to the child of being able to maintain relationships with each parent and with other people significant to them. (Please see Family law reforms would overturn Howard-era rules in bid to reduce conflict, The New Daily, 30 January 2023.)
Some might see the change as disadvantaging separated fathers or mothers who want a say in their children's lives, but it would enable a court to reach a solution in the child's best interests when parents are at loggerheads and won't agree on sharing arrangements.
It also allows a court to stop endless litigation intended to bully a parent into submission. The child's needs will be at the forefront, and an independent children's lawyer will have to meet directly with the child during the process.
Family law reform desperately needed
The change is needed. Family Court statistics show a risk of family violence in 80 per cent of parenting disputes before the court and a risk of child abuse in 70 per cent of cases.
The move follows the recommendation of the 2019 Australian Law Reform Commission report to remove the equal shared parental responsibility law which had led to prolonged litigation, conflict and distress. (Please see Family Law for the Future - An Inquiry into the Family Law System, Australian Law Reform Commission, March 2019.)
Camilla Nelson, Associate Professor at University of Notre Dame and author of a book on the Family Court, welcomed the move but said it should also include a statement of children's rights. (Please see Labor's proposed family law overhaul makes some important changes, but omits others, The Conversation, 31 January 2023.)
"To change the culture of the court, children need legal rights, not just a rubbery set of 'best interests', and the court must be responsible for ensuring children's rights are protected," Professor Nelson wrote in The Conversation.
"A central problem is that the adversarial culture of the court marginalises children, and can profoundly silence them, including when children express concerns about their safety," she wrote.
Felicity Marchant
Family law
Stacks Law Firm
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