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Over the past few years there have been a number of inquiries looking into the Family Law system and the Family Law Act (the legislation governing Family Law Matters in Australia).

Yesterday, 30 January 2023, Attorney-General Mark Dreyfus announced the Federal Government plans to overhaul the Family Law Act, releasing an exposure draft of the Family Law Amendment Bill 2023 for consultation.

The significant proposed changes in the exposure draft include:

Repealing the presumption of ‘equal shared parental responsibility’

As part of the proposed reforms, the Government is proposing to repeal the presumption of ‘equal shared parental responsibility’ (section 61DA of the Family Law Act) and the related provisions to consider specific care-time arrangements when the presumption is enlivened.

If this proposed change becomes law, judges will still be able to make orders for shared parental responsibility and equal time, but the decision-making process for this will be more focused on the best interests of the child when considering if equal shared parental responsibility should be ordered rather than being a presumption.

Making the list of ‘best interests of the child’ factors clearer

Reducing the current factors the Court assesses when considering the ‘best interests of the child’ under section 60CC of the Family Law Act 1975 to six factors.

Aboriginal and Torres Strait Islander children

Including a separate factor to ensure that a focus is kept on maintaining a connection to culture as being in the best interests of Aboriginal and Torres Strait Islander children when making parenting arrangements. There is also a proposed definition of “member of the family” that is more inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship.

Making it clear when a parenting order can be changed

Making it clear that a parenting arrangement made by the Court can only be changed if there has been a significant change in circumstances since the order was made as well as setting out factors to be taken into account when considering if a final parenting order should be changed.

Hearing children’s views

A requirement that in the majority of cases an Independent Children’s Lawyers (‘ICL’) is to meet with children to make sure their views are considered when the court makes parenting arrangements.

Simplifying other areas of the law (such as the enforcement parenting orders and when details of family law proceedings can be shared)

The proposed changes in details of family law proceedings simplifies Division 13A of the Family Law Act to make the consequences of not complying with parenting orders clearer and more straightforward as well as making it clear as to which actions are acceptable when details of family law proceedings are shared.

Powers to protect people from the harmful effects of litigation

The exposure draft also includes two new powers enabling the Courts to better protect people from the harmful impacts associated with litigation.

These are:
1. A power to exclude evidence of records relating to the provision of health services, such as medical or counselling records (‘protected confidences’) in family law matters, and
2. A power for the Court to stop a person from filing any further family law applications in circumstances where they are likely to be harmful to a respondent or a child.

The consultation period is open until 27 February 2023.

We await the outcome of the consultation and further progress the Bill over 2023.