Major changes are coming that will impact the family law system and the way practitioners operate in Australia, particularly their advice to clients and to their precedent documents. The Family Law Amendment Bill 2023 is currently under debate in parliament and after its third reading, is now under review with the Senate Legal and Constitutional Affairs Legislation Committee. Their report is due in August 2023.
Family law and general practitioners need to be aware these changes are coming and be prepared for likely implications for their clients. The College of Law will provide legal training support when the Family Law Amendment Bill commences, but in the meantime, we spoke with College of Law adjunct lecturer and accredited specialist family lawyer and mediator, Kathryn Kearley, to find out how the changes will impact family law practice.
The intention of the Family Law Amendment Bill 2023, which was first introduced to Federal Parliament 29 February 2023, is to enhance the family law system and to ensure the best interests of children are a priority.
As Kathryn Kearley explains, the proposed changes encompass a major overhaul of the family law system.
“There are very significant and timely changes currently before parliament to simplify and clarify the law about parenting orders, the terminology, and the processes in cases where an Independent Children’s Lawyer is appointed. These changes stem from law reform recommendations made by the Australian Law Reform Commission [ALRC] after thorough consultation with numerous stakeholders,” Kathryn says.
Why these changes are being implemented
The amendments in the Bill are driven by the recommendations from the Australian Law Reform Commission’s Final Report No. 135: Family Law for the Future - An Inquiry into the Family Law System (ALRC Report). These include adjusting to fundamental social change over the last 40 years, meeting the needs of contemporary families, affording privacy and dignity to all, protecting children and making the process more affordable, among other things.
The Bill also addresses issues such as court resourcing, delays and judicial complexities identified in the Government Response to the Joint Select Committee on Australia’s Family Law System (JSC Inquiry).
“The reforms in the Bill take up feedback from families, lawyers and social scientists about current short comings in the Family Law Act. The reforms also recognise that law needs to be clear, concise and understandable but also needs to be dynamic so as cater for different families across a range of cultural backgrounds, especially First Nations peoples, who encounter the family law system,” Kathryn explains.
What family lawyers need to know
Lawyers doing family law work will need to keep an eye on the passage of the Bill through parliament. Once the Bill becomes law, lawyers will need to review and update their advice and their precedents, including letters and documents such as parenting plans and orders, to ensure that changes to the Act are incorporated and advice to clients addresses the changes.
“However, the central and other practice directions of the Federal Circuit and Family Court will continue to apply so that dispute resolution is mandatory [subject to some exceptions) so people can work together with the help of mediators to thoughtfully work out what arrangements best suit the needs and characteristics of their own family,” Kathryn says.
“At this stage it seems there may be some changes to content of the agreement people might reach and the decision-making process of the court if parents cannot agree. People will still be able to reach agreement and record their agreement in a parenting plan or by consent orders made by the court.”
Family lawyers need to be aware of the detail of the pending amendments to ensure their practice and representation of clients applies the changes to the law.
In summary, the changes in the Bill:
- Streamline legislative framework for making parenting orders, including changes to the factors considered when making parenting arrangements in the best interests of the child.
- Remove the presumption of equal shared parental responsibility and related equal time and substantial and significant time provisions.
- Clarify the circumstances in which a court can vary an existing parenting order.
- Redraft the provisions about the enforcement of parenting orders and other orders affecting children so consequences of non-compliance with parenting orders are clearer and more straightforward.
- Amend definitions related to the concept of ‘family’ to be more inclusive of First Nations peoples’ culture and traditions.
- Require Independent Children’s Lawyer (ICL) to meet with a child and give the child an opportunity to express a view, and to expand use of ICLs in cases under the Hague Convention on the Civil Aspects of International Child Abduction.
- Enhance family law case management and procedure by introducing ‘harmful proceedings orders’ to prevent a vexatious litigant from filing and serving new applications without first obtaining leave and broadening the ‘overarching purpose of family law practice and procedure’ and the accompanying duty, to all proceedings instituted under the Act.
- Clarify restrictions around public communication of family law proceedings.
- Establish a new power to make regulations that provide standards and requirements to be met by family report writers by accelerating the review of the FCFCOA Act.
NB: These significant reforms to family law passed Parliament on 19 October 2023. The Family Law Act (1975) is impacted by these Bills - the Family Law Amendment Bill and Family Law (Information Sharing) Bill. We spoke to family lawyer and College of Law adjunct lecturer Kathryn Kearley about what these reforms involve and what lawyers need to know.
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