The reforms aim to make separations safer for families and their children.

The first set of amendments is set to simplify the legislation, in response to issues that have arisen regarding the complexity of the act, leading to it being misunderstood in ways that have led to unsafe parenting arrangements: 

These include but are not limited to:

• Repealing the presumption of equal shared parental responsibility;
• Simplifying the list of factors that are considered in determining the best interests of children in parenting arrangements;
• Introducing requirements for Independent Children’s Lawyers (ICLs);
• Ensuring the court considers the right of Aboriginal or Torres Strait Islander children to maintain their connection to their family, community, culture, country and language; and 
• Simplifying the enforcement of parenting orders to make the consequences of non-compliance clear. 

• Introducing two new information-sharing orders for courts to quickly seek information from police and child protection agencies about family violence, abuse and neglect;
• Ensuring these orders are available at any point during proceedings; and
• Increasing protections to ensure sensitive information is disclosed safely.

It also seeks to lead to a faster and less costly resolution of cases. The review will take place in 2024.

Dr Noam Peleg, senior lecturer at the faculty of law and justice at UNSW Sydney, spoke to Lawyers Weekly.

VIEW ALL

“The two new amendments are a bold attempt to try and tackle some of the more pressing issues that families are facing, which are uncertainty when it comes to parenting orders, and the ability of abusive or vindictive partners to abuse the system, and drag their ex-partners and children to court time and again,” he explained.

“However,” he noted, “these laws aren’t significantly different from the drafts that were presented to the public two months ago, and it seems that the input received from the public didn’t change much”.

Mr Peleg highlighted where the amendments fall short: “The new definition of the principle of the best interests of the child falls short of international children’s rights law standards and best practices in other countries, despite what the government claims.”

“While it makes children’s views an inherent part of the best interests analysis, which is an improvement comparing to the law today that makes it a potential element only, the new law is drafted in passive tone, asking the court to consider ‘any views expressed by the child’ instead of using active voice requiring the court to ascertain the views of children.”

He continued: “This will inevitably lead to many situations where children will not get the chance to express their views, where adults, namely judges, practitioners, or parents, will be able to hide behind excuses as to why it wasn’t possible to ascertain children’s views in those cases.”

Mr Peleg also discussed some of the issues that may arise with the implementation of the new legislation. “The removal of some presumptions concerning what is best for children in general in favour of ordering the court to conduct a case-by-case analysis is a welcomed move. 

“But with an underfunded system, a serious backlog of cases and family consultants who get insufficient time to meet a family and write a family report, there is a real risk that ‘similar’ cases will be decided in a similar way,” he explained. 

Mr Peleg added: “The amendments also miss the opportunity to incorporate other key rights of children into the legislation, including their right to privacy, right to development, right to non-discrimination and the right to family living.”

“We have experience with reforms that looked good on paper at first look, like in 2006, but ended up being a disaster in practice,” he stated.

“There is a real risk that these suggestions will result in the same way.”

Michael Moloney, partner and accredited family law specialist at Edwards Moloney, commented: “The bill seeks to modernise the system and reverse previous amendments that had unintended consequences, such as the 2006 presumption of equal shared parental responsibility.”

“In principle, the proposed changes are generally supported by the profession, but they are significant and varied and may initially complicate issues for family lawyers as existing matters working under the current legislation and matters filed following the proposed modifications will require different fundamental presumptions and considerations.”

Hayder Shkara, principal at Justice Family Lawyers, stated: “The proposed changes are part of the shift of the court and society to move towards listening to children as opposed to giving the power to parents.”

“Undoubtedly, the change is a loss for fathers in Australia, who will have an even harder time having their voices heard in a court that is going to take a cautious approach when allegations of abuse are made.”

Law Council of Australia president Luke Murphy commented: “We remind the Commonwealth again, that our family law system, particularly the Federal Circuit and Family Court of Australia and the legal assistance sector, needs a significant boost in funding, especially to meet their increased obligations arising from the proposed reforms.” 

The PwC report released earlier this week underlined the urgent need for such resourcing, Mr Murphy added. 

Geoff Ebert, principal at Your Online Legal Group, concurred on the point made by Mr Murphy. 

“It is proposed that all children over five years of age must meet specifically with the ICL unless there are exceptional circumstances,” he outlined. 

“There is a significant cost increase in having the ICL undertake face-to-face reviews, and because many children’s matters are funded through legal aid that there will be a need to uplift funding to Legal Aid over a longer term to enable this important work of the ICL to be undertaken.”

“[It must take] into account that many family law matters are determined in regional locations, and the ICL is not always located in the region where the children live,  that mechanisms will need to be put in place to allow the personal meeting to occur.”