On October 19, 2023, the Federal Parliament passed two crucial pieces of legislation in the Family Law sector. These laws will have a significant impact on proceedings in the Federal Circuit and Family Court of Australia.
The date the Bills become law is yet to be finalised, but typically the amendments usually commence within 6 months of the date of them being passed.
Previously the Australian Court system ensured a legal presumption of equal shared parental responsibility. It was considered to be in the children’s best interests that parents share responsibility and consult each other in relation to major long-term issues and decisions relating to the children including living arrangements. These parenting decisions covered other topics such as education, health, religion, passport matters and any other decisions relating to the child’s upbringing, (unless it was unsafe to do so).
This presumption has now been repealed and the primary focus of the Courts will be centred around the best interests of the children and their wishes, including ensuring their safety.
To ensure this shift is upheld, Independent Children’s Lawyers will also be more readily available in matters where they may not have been previously utilised, and they will now be required to meet with the children to give the children an opportunity to express their views.
Essentially, the list of considerations that a Court was to contemplate in determining the best interests of the children has been clarified and extended. It now has a greater focus on promoting children’s safety, protecting them from harm and importantly, consideration of the developmental, psychological, emotional and cultural needs of the children.
The amendments also place significant import on experiences of family violence, particularly how this relates to contributions during the relationship and the effect, including financial effects, of such abuse following separation.
The amendments promote greater powers in protecting parties and children from harmful litigation. Additionally, prioritising the welfare and financial security of domestic violence victims and preventing perpetrators from abusing the process is promoted. This includes considering the effect of any economic or financial abuse of one party in a relationship and the effect of any wastage of property or financial resources that may come about from family violence.
The Act now contains more inclusive definitions and considerations in relation to our First Nations people, specifically redefining what constitutes a ‘member of the family’ and what is considered to be in the children’s best interests if a child is Aboriginal or Torres Strait Islander. This seeks to uphold the right for a child to enjoy their Aboriginal or Torres Strait Islander culture, including their connection with their community, and the impact of any proposed orders on this right.
Lastly, these reforms also redefine the instances in which a Court has power to reconsider final parenting orders and ensure simplified compliance of child-related orders but note a significant change in circumstances is required.
These amendments relate more explicitly to the Court’s ability to access information, including seeking direct and swift information from organisations including the Police, Department of Families, Fairness and Housing and firearms agencies.
This promotes the above amendments by ensuring the protection of and promoting the safety of parties to family law proceedings and can be ordered by the Court at any stage of litigation.
This will ensure the information before the Court is the complete picture and relevant at the time of making Order. This is particularly important in instances where there is a risk of child, abuse, neglect or family violence and allows for sensitive information to only be disclosed in a safe and appropriate manner.
The aim of this legislation is so that family law matters are resolved in a more efficient manner without compromising the safety of those directly and indirectly involved.
At PCL Lawyers we are always up to date with the latest legislative changes and how this impacts our clients matters. If you are in a custody dispute and need advice on how what your options are we can help.
We will help you understand how these amendments apply to your personal situation or impact your family law matter. Please contact our Family Law team to discuss your circumstances.
If you or someone you know has been a victim of domestic violence, you can contact the National Sexual Assault, Domestic Violence Counselling Service on 1800RESPECT for 24/7 assistance and support.