Changes to the Family Law Act-Detailed

Changes to the Family Law Act

On 19 October 2023, the Commonwealth Government has passed two Family Law Bills that will change the way Parenting matters are dealt with by the Family Law Courts.

The major changes to be brought in by the Family Law Amendment Bill include:

• The parenting order framework for making parenting Orders has been refined and contained to a smaller list of ‘best interests’ factors;
• The presumption of equal shared parental responsibility and related equal time have been removed and the Court can still make orders for parental responsibility however the presumption for equal shared parenting responsibility has been removed;
• Independent Children’s Lawyers are required to meet directly with children as whilst recommended this was not required and was at the discretion of the Independent Children’s Lawyer;
• The Court will have greater powers to protect parties and children from harmful effects of protracted and adversarial litigation
• Changes to the Act to provide a definition of ‘member of the family’ in the Family Law Act that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship
• More simplified compliance and enforcement provisions for child-related orders
• Powers to enable government to regulate family report writers,
• The Act codifying the Rule of Rice and Asplund; and
• ensuring that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.

The Parliament also passed the  Family Law (Information Sharing) Bill 2023  The Bill: establishes two new information sharing orders to allow courts to directly and quickly seek information from Police, Child protection and Firearms agencies about Family violence, child abuse and neglect that could place children at risk.  There was a previous ability for the Courts to obtain information, through the Family Law Act, under a section 69ZW Order, however the compliance with the requests was often slow, whereas the new bill intends to be quicker and faster.

The Bill also allows a court to make these orders at any point during proceedings so information is accurate and up-to-date, and will ensure sensitive information is only disclosed in a safe and appropriate manner.  This is a very much needed approach to assist Judicial Officers making Parenting Orders for matters with families experiencing Family Violence. 

Both of the Bills have yet to receive Royal Assent and we are not yet certain as to the commencement date.  The changes are very much welcomed, at dealing with these very important issues.

The second round of proposed changes to the Family Law act are:

In addition to these Bills, the government has prepared an exposure draft Family Law Amendment Bill (No 2) 2023 and it contains a second tranche of reforms focussing on improving and enhancing other areas of family law.

The Attorney General’s Department is inviting submissions in relation to the proposed changes to the Second Bill.  The Department intends to analyse submissions and to receive advice from the government by late 2023, with a view for the bill to be introduced by Autumn 2024 (at the earliest). If the Bill is passed, it is intended for the Bill to be passed about mid- to late 2024 and for the Bill to come into effect within six months of it being passed.

By summary, the proposed changes are as follows:

Changes to the Property Matters

The government intends to change the Property framework of the Family Law Act. This is in response to complaints that the current system is over complex.  There is also an intention for the Act to be responsive to family violence and to deal with non-compliance with a disclosure of financial issues.  The intention is for the Act to be amended so it is clearer for people to understand and to then provide more guidance for the court, legal representatives of the public.

They propose the following:

1. To codify the existing four step approach as currently provided for in the case law;
2. To co-locate section 75(2) that deals with the ‘needs of parties’ components to be placed into that section also. This will make it easier to read the Act.
3. codify the case law concepts that deal with the treatment of ‘debts’ and ‘wastage’. They were previously covered in the Case Law but they were not specifically referred to in the Act.
4. To change the Act, to make reference to Family Violence. The court may take into account the effect of any family violence to which one party to the relationship has subjected to the other party on;
   
   • the ability of the other party to make financial and non-financial contributions and
   • on the current and future’s circumstances of the other party including on any other matter that can be considered as part of the current and future circumstances.
5. This approach allows for the effect of family violence to be considered as an overarching factor where relevant to the court’s consideration of other factors. For example, the effect of family violence could be relevant to understanding the parties’ non-financial homemaker contributions or may be relevant to the capacity of a party for future gainful employment.
6. They also intend to provide a new contributions factor being the effect of economic and financial abuse, saying the court may take into account the effect of any economical financial abuse to which one party the relationship has been subjected to the other party.
7. This could have significant differences to the operation of Family Law act in circumstances where family violence was taken into consideration through the case law principles set out in the case of Kennon and Kennon however it is intended to be in the Act.
   Implementing Less Adversarial Trial in Financial Matters
8. The Bill intends to create a new division you which changes the way hearings will run for Financial matters. Currently Parenting matters are governed by division 12A of the Family Law Act, the principles for conducting child related proceedings and being have what’s called a “Less adversarial trial process”.   The less adversarial trial process has not always been applied for non-child related proceedings. The new proposal is that the court will have duties and powers to be able to use ‘the less adversarial trial processes’ that have been used the parenting matters for financial matters also.
9. This will allow the court to actively direct, control and manage the conduct of proceedings, to safeguard parties against family violence and conduct the proceedings without undue delay and with as little formality and legal technicality and form as possible.
   Codifying the Disclosure Rules
10. The Bill intends to codify the existing disclosure duty which is set out in Federal Circuit and Family Court of Australia Rules to now be provided is under many family law act.
11. The Family Law Act will provide for the parties to have a full and continuing disclosure of all relevant financial information. It will extend the existing duty on the parties to apply when the parties are preparing to start proceedings.
12. It also provides her a requirement of the legal practitioners and family dispute resolution practitioners to advise the parties about their disclosure duty the consequences of a breach and encourage compliance with the duty.
    Simplifying the Family Law Arbitration framework
13. The Bill intends to create one consolidated list of financial and property matters that can be Arbitrated regardless of whether arbitration is court referred or privately arranged.
14. To also allow Arbitrators to make an application to the Court if needed, and not simply the parties. This was in response to issues arising from the current law, that prohibited the Arbitrators from making an application, even if it was needed.
    Providing a regulatory framework for Children’s Contact Services
15. The Bill intends to authorise the government to develop regulations which provide accreditation standards and requirements for the government funded and private Children’s Contact services.
16. It is often the case that the parties will engage a Supervised contact centre or a professional supervising agency to act as the supervisor.  The children’s contact centres would fall under the umbrella where they were heavily regulated however, there are a number of private agencies that provide professional supervision that have not been regulated at all.
17. As there was legal requirement for them to be regulated, there was therefore no accreditation standards, and it would mean that families would utilise professional supervising agencies that were not regulated.
18. This is a significant a fundamental change to the Act as it ensures that there is some accountability and quality assurance for the delivery of high quality contact services.
19. The proposed draft bill provides the parameters the boundaries of this particular regulatory scheme however that I provide specific details of the scheme and that will need to be provided in more detail later.
    Extending the court’s management and procedure powers
20. The Bill intends to allow the Court the ability to reject applications for parenting orders if the parties had not participated in compulsory dispute resolution.  They are not currently able to under the current Act.
    Clearer operation of Commonwealth Information Orders
21. The Act enables a party to make an order directed to a government authority to provide information in relation to the location of a child. 
22. There has been some confusion over the operation of some of the Orders in the current law.  The proposed Bill intends to deal with the issues of confusion around the making of and compliance with Commonwealth Information Orders.
    A clear framework for costs orders in family law matters
23. A further proposed changes to the Family Law Act to provide greater clarity and scope and the application of the Court’s power to order costs.
24. The Bill will not change the general rule that each party pay their own costs.
25. The Bill intends to make provisions in there that the legal aid commission can recover the cost of an ICL from parties who are receiving legal representation under the section 102NA for the Family Violence and Cross examination parties scheme, but they will also clarify that the Court must not make an order for a party to pay the contribution of an ICL, if one party is in receipt of means tested legal aid.
    Clarifying when information in family counselling, dispute resolution and parenting programs can be shared in court proceedings
26. The Bill also intends to clarify the admissibility provisions in relation to matters discussed at family counselling, dispute resolution, and parenting programs can be shared in court proceedings.  That those provisions are intended to apply to all courts including courts that are not exercising jurisdiction under the Family Law Act.  
    Excluding evidence of protected confidences to protect sensitive information
27. The First Bill sought a provision about the exclusion of ‘protected confidences’. For records relating to health services, such as medical or counselling records.
28. The rationale behind the proposed change, was that it intended to protect the person who made a report in those records, from being identified, if they were making a confidential communication/report in the medical or counselling records with the view to exclude the evidence, so as to protect the person making the report.
29. This part of the Bill was removed from the first Bill in circumstances where it was concerned that there would be unintended consequences as a result of the inclusion of this provision.
30. The concern was if the evidence of the protected confidence was excluded as evidence, it could do significant harm, as it would mean that the evidence was not before the Court, and that may have been very important information that a Judge/Judicial officer needed to assist the Court to make a decision about a child being at risk.
31. No proposed amendments had been made at this stage, however, stakeholders will be invited to provide feedback on these issues.
32. As both considerations are important, a balance may need to be struck between the need to protect the person reporting and the importance of the information, that needs to be given to assist that the best interests of the child is being met.

You can find out more information, by obtaining copies of the Draft Bill and facts sheet and public webinar, via the following link: https://consultations.ag.gov.au/families-and-marriage/exposure-draft-family-law-amendment-bill-no-2/

Should you have any further questions, or wish to meet with one of our experienced Family Law Solicitors, contact Solari and Stock on 02 8525 2700 or click here to request an appointment.

Article written by Nicole Quirk
Photo by Ross Findon on Unsplash

Please note this information is true and correct at the time of publishing, for the most up to date changes please refer to the article “Changes To The Family Law Act-Will it affect my Parenting Case?“