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The Albanese Government wants to change the way the Family Law Act 1975 (“FLA”) operates for separating families and their children.

According to the Federal Government, the draft Family Law Amendment Bill 2024 (“the Bill”), will “make the Family Law Act simpler and safer”, whilst placing “the best interests of children at the centre of the family law system”.

So how exactly does the Government plan to change the legislation we have?

Presently, the FLA operates under a ‘presumption of equal shared parental responsibility’ (section 61DA of the FLA). This means that the Family Court must assume it is in a child’s best interests for both parents to have a role in making major long-term decisions. These decisions might include where a child goes to school or upon which medical practitioner they attend.

Equal shared parental responsibility, however, does not mean that there is a presumption that each parent will spend equal time with their child. Instead, the FLA operates under a principle that a child should spend substantial and significant time with both parents, where it is in the child’s best interests to do so.

The Family Court presently must consider the above presumption, principle and an additional 13 considerations when making a decision pertaining to parenting matters under the FLA.

Under the proposed changes, the Family Court will instead consider 6 “best interest” factors in determining parenting matters. This is a stark contrast to the current model of decision making.

The Family Court will still be able to make orders relating to equal shared parental responsibility and substantial and significant spend time arrangements, however, the system will, when implemented, now focus more heavily on the best interests of the children rather than on other presumptions, principles and considerations.

Other amendments proposed by the government will enshrine a need for Independent Children’s Lawyers (ICLs), when they are appointed by the Family Court, to meet directly with the children.

There is also a proposal to ensure that a focus is kept on maintaining a connection to culture when dealing with the best interests of Aboriginal and Torres Strait Islander children. There is also a proposed definition of “member of the family” that is more inclusive of Aboriginal and Torres Strait Islander ideals of family.

When will these changes come into effect?

Presently, the proposed amendment bill is only in the consultation period. The consultation period ends on the 27 February 2023, upon which the Bill may be further amended.

The Bill itself will also need to become law and obtain royal assent before it can be enacted. This process could take months, even years. Furthermore, upon the Bill becoming law, there is a 6-month lead time before any changes to the FLA will come into effect.

The purpose of the lead time is to allow time for practitioners and the Family Court to familiarise themselves with the new legislation.

How will this affect my Family Law matter now?

Until the draft Bill becomes law, the proposed changes will not impact your family law matter. For the most part, the new FLA will only apply to proceedings brought after the commencement of the amended Act.

Will this improve the Family Law system?

The idea behind the new legislation is to create a simple, user-friendly model of law. Currently, the Family Law system is experiencing a backlog of matters not previously experienced. There is also a common misconception that the presumption of equal shared parental responsibility automatically entitles a party to a 50/50 care arrangement.

The Government is hopeful that by removing the equal shared parental responsibility presumption that this will alleviate the stress placed on the Family Court system by misguided applications labouring under an incorrect interpretation of law.

Furthermore, by more explicitly detailing the need to consider the best interests of the child and by minimising the risk misinterpretation, the Government considers that this will place the Court in better stead to protect children from the risk of Family Violence.

About the Author: Jasmine Trewin is a family lawyer who has completed both a Bachelor of Laws and Bachelor of Arts (majoring in Journalism). Jasmine spent time working at the Federal Court of Australia before joining Lynn & Brown Lawyers in August 2021.

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