Significant reforms to family law have just 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.
What you need to know
As previously advised, The Family Law Amendment Bill proposed major changes to the Family Law Act. These amendments have now been passed in Parliament.
The changes relate to parenting and include:
- changing the existing parenting order legal framework by refining the list of ‘best interests’ factors the Court must take into account;
- removing the equal shared parental responsibility presumption and related equal time which were confusing;
- requiring the Independent Children’s Lawyer to meet directly with children so as to give children a greater voice;
- giving increased power to protect parties and children from negative effects of drawn-out litigation;
- introducing a definition of ‘member of the family’ inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
- simplifying the sections about compliance and enforcement in regard to orders made about children;
- giving power to enable government to regulate family report writers, and;
- ensuring that children’s wishes are addressed matters under the Hague Convention on the Civil Aspects of International Child Abduction.
The Family Law (Information Sharing) Bill also makes major changes to the Family Law Act.
These changes include:
- establishes two new information sharing orders to allow courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that may place children at risk;
- allows a court to make these orders at any time during proceedings so information is accurate and up-to-date, and;
- will ensure sensitive information is only disclosed in a safe and appropriate manner.
What led to these reforms?
“The recent reforms address law reform 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) plus elements of the Australian Government Response to the inquiry of the Joint Select Committee on Australia’s Family Law System (JSC Inquiry),” Kathryn explains.
“These two publications identify many challenges in the family law system,” Kathryn observes. “Challenges include court delays, complex law and inadequate protection for families and children at risk of family violence. These publications and the reforms are based on wide consultation with a range of stakeholders, including courts, peak national NGOs, Aboriginal and Torres Strait Islander organisations, the legal profession and family law service providers.
“The Family Law Amendment Bill focuses on the ALRC Report and JSC Inquiry recommendations about parenting and children and makes substantial changes to Part VII of the Family Law Act,” Kathryn says.
New parenting provisions will help to guide families who work to reach an agreement and make decisions about their children outside of court Kathryn explains. The decision process for these people might involve Family Dispute Resolution, mediation, or negotiation with, or without, lawyers.
“The new parenting provisions also establish a clear framework for decisions to be made by judges in cases determined in the court after a hearing,” Kathryn says.
“The Family Law (Information Sharing) Bill improves information gathering and effectiveness of information sharing between the family law, family violence and child protection systems,” Kathryn confirms. “The amendments should give more protection to those subjected to or at risk of family violence.”
How can you prepare for these reforms?
Given both these Bills have now passed Commonwealth Parliament, assent and commencement will occur shortly.
“It’s important that legal practitioners understand the new amendments and how the law and the decision-making framework in parenting cases will soon change,” Kathryn says.
She advised legal practitioners to carefully review the amendments to the Family Law Act.
“Once the new amendments commence, legal practitioners will also need to review the initial advice about parenting issues given to clients prior to the amendments to ensure that, as the parties proceed along the litigation pathway, they are aware of the changes to the law and the decision making,” Kathryn explains.
“Legal practitioners will also need to review and update their precedent advices, letters, draft orders and parenting plans, as well as marketing information to ensure that they are giving correct advice about the law in light of the amendments to the Family Law Act (1975)."
To keep your skills up to date, and to learn from practice experts like Kathryn Kearley, please see our CPD and postgraduate courses below:
The essential guide to family law: practice and procedure
Interdisciplinary collaborative practice training
Essential guide to family law practice
Family Law Postgraduate Programs