How parenting arrangements are resolved by the court has been a relatively stable and predictable aspect of family law for some years, after a period of uncertainty after the last major reforms in 2006. The playing cards are being thrown in the air again and it is likely that if proposed legislation is passed that it will be more difficult to predict outcomes when matters proceed to a final hearing, and therefore more difficult for lawyers to give legal advice with any degree of certainty as to what a court might do.
On 29 March 2023, the Federal Government tabled three Bills in Parliament which impact separated couples:
- Family Law Amendment Bill 2023 (FLAB)
- Family Law Amendment (Information Sharing) Bill 2023 (Information Sharing Bill)
- Social Services Legislation Amendment (Child Support Measures) Bill 2023 (Child Support Bill)
The tabling of these appears to have been fast tracked by the Federal Government. The community consultation process on the FLAB, which has the broadest impact, was only over a period of 28 days and completed as recently as 27 February 2023. However, in reality the FLAB is just the first tranche of legislative reform addressing the Australian Law Reform Commission’s Final Report No. 135: Family Law for the Future – An Inquiry into the Family Law System (ALRC report) and implementing elements of the Government Response to the Joint Select Committee on Australia’s Family Law System (Joint Select Committee). The ALRC report was tabled in Federal Parliament by the former Federal Government four years ago, on 10 April 2019.
This is the first significant reform of family law since the commencement of the Federal Circuit and Family Court of Australia (FCFCOA) on 1 September 2021, and further legislative reform is expected in 2023, including in relation to the law regarding property settlements between separated couples.
FAMILY LAW AMENDMENT BILL 2023
The FLAB contains amendments to the Family Law Act 1975 (Cth) (FLA) and the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
According to the Explanatory Memorandum, the Bill will:
“● amend the parenting orders framework in the Act to:
- refine the list of “best interests” factors, with the aim of reducing complexity and repetition and enhancing the focus on the needs of individual children
- include a standalone “best interests” factor requiring a court to consider the right of Aboriginal or Torres Strait Islander children to enjoy their culture
- repeal the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions
- make it clear in what circumstances a court can vary an existing parenting order
- strengthen compliance with, and enforcement of, parenting orders by:
- redrafting the provisions in Div 13A of Pt VII (compliance with parenting orders) to make them simpler and easier to apply
- ensuring registrars can make compensatory time orders
- enhance the power of the courts to protect parties, and their children, from the harmful effects of litigation through:
- new case management provisions
- a new power for courts to restrain the repeated filing of new applications
- clarify the restrictions on the publication of family law proceedings
- enhance the voices of children in family law proceedings, including by:
- codifying a requirement for ICLs to meet with and seek the views of children
- removing the restriction on judicial discretion to appoint ICLs in proceedings under the Hague Convention
- establish a regulatory making power for Government to make regulations that would provide standards and requirements to be met by family report writers who prepare family reports, and
- make minor administrative amendments to the FCFCOA Act to enhance the administration of the FCFCOA.”
The ALRC report recommended the abolition of s 60B FLA (Recommendation 4).
Currently, s 60B sets out 4 objects and 5 underlying principles which apply to Pt VII of the FLA, the Part relating to children. The proposed s 60B has only 2 objects which are:
“(a) to ensure that the best interests of children are met; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.”
The proposed narrower s 60B removes the express references currently in s-s 60B(1) to ensure that the best interests of children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests of the child; and
(b) protecting children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.”
Objects can be used to resolve ambiguities in interpretation and it is arguable that the narrower list of objects will impact the operation of Pt VII.
The proposed removal of the principles in s 60B(2) may be less controversial as principles do not have the same impact as objects and are not as readily relied upon for the interpretation of ambiguities. However, the removal reinforces the view the FLAB changes the law with respect to parenting. In particular, 2 of the principles set out in the current s 60B(2) are noticeably removed by the FLAB:
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)…”
The ALRC Report recommended the abolition of s 60B largely because it overlapped with s 60CC, there was potential for confusion and the principles have limited legal effect (Recommendation 4). The retention of s 60B in a more limited form, which retains the reference to the Convention (the current s 60B(4)), arguably retains a degree of complexity and there is likely to be confusion for some time as to the effect of the amendments to s 60B. The public and the legal profession may be concerned as to:
- Why it was considered important in 2006, when s 60B was inserted into the FLA, to give greater detail as to the objects of Pt VIII and the meaning of the best interests of the child; and
- What the proposed s 60B(b) adds to the consideration of best interests, which is not already covered by the proposed s 60B(a), particularly given that the other aspects of the current s 60B are to be removed.
In accordance with the recommendations in the ALRC Report, the FLAB also refines the list of ”best interests” factors in s 60CC with the aim of reducing complexity and repetition of the current hierarchical structure of s 60CC. The current 2 primary considerations and 14 additional considerations are replaced with a core list of 6 considerations, with an additional factor for Aboriginal or Torres Strait Islander children. Related to this amendment, the definition of “member of the family” is expanded for Aboriginal and Torres Strait Islander children to include persons who are related to the child in accordance with the child’s Aboriginal or Torres Strait Islander culture (Recommendation 9).
The proposed “best interests” factors are:
- what arrangements promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm
- any views expressed by the child
- the developmental, psychological, emotional and cultural needs of the child
- the capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs
- the benefit of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so
- anything else that is relevant to the particular circumstances of the child
- for an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture
There will be concerns amongst some parts of the community that the removal of an express reference to grandparents will change the law. The reference to grandparents in s 60CC was inserted after much lobbying by community organisations representing grandparents. Grandparents may also feel that their role has been diminished and the rights of children to have a relationship with their grandparents are disregarded with the simplification of s 60B. However, importantly, s 65C remains and grandparents still have standing to be parties to parenting proceedings.
Family violence will no longer be a primary best interests consideration, but is a general consideration along with a new but shorter list of factors in s 60CC. Family violence is given prominence under the proposed amendments despite its removal as a primary consideration, but “safety” is now emphasised rather than “protection”. The consideration of “safety (including safety from family violence, abuse, neglect or other harm)” is referred to in the proposed s 60CC(2)(a), rather than the current s 60CC(2)(b), which refers to the primary consideration of “the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence”. The effect of this change, if any, will need to be considered by the courts.
The proposed s 60CC(2)(f) refers to “anything else that is relevant to the particular circumstances of the child”, whereas the current s 60CC(2)(m), at the end of a larger shopping list of additional circumstances, refers to “any other fact or circumstances that the court thinks is relevant.”
The FLAB removes some of the more practical aspects of s 60CC, which are often not considered by family report writers but which may be relevant in a contested hearing, for example:
- Contributions to financial support of children (s 60CC(3)(ca))
- Practical difficulties and costs arising in relation to children spending time with both parents (s 60CC(3)(e))
- Participation in decision making (s 60CC(3)(c))
- Attitude and approach to responsibilities of parenthood (s 60CC(3)(i))
There is a risk that the practicalities of parenting and shared parenting arrangements may be given less weight by the parties, their lawyers and interim decision makers because they will no longer be explicitly stated in the FLA.
More generally, the likelihood is that the law has been intentionally changed by the amendments to ss 60B and 60CC. According to the Explanatory Memorandum, refining the list of “best interests” factors has the “aim of reducing complexity and repetition”, but also “enhancing the focus on the needs of individual children”. It states that the current formula “can detract from the focus on the best interest of the child.” The redrafted s 60CC is said to provide the court:
“with the ability to consider the unique circumstances in each parenting matter in a way that places the best interests of a child at the forefront of decision making.”
The courts are likely to interpret the legislative changes as intending to effect a change in meaning and outcomes (albeit not significantly) by giving a different emphasis to the various factors considered in relation to best interests of children in their individual circumstances, rather than giving all factors the same weight in all cases.
Presumption of equal shared parental responsibility and the consideration of equal time and significant and substantial time
The FLAB repeals the presumption of equal shared parental responsibility under s 61DA (Recommendation 7) and the related equal time and substantial and significant time provisions in the current s 65DAA (Recommendation 8)).
The presumption of equal shared parental responsibility was introduced in 2006. but the ALRC Report and other enquiries have found that this section is commonly misinterpreted as creating a right to equal shared time with children.
The ALRC also recommended, as part of Recommendation 8, changing the term “parental responsibility” to “decision making responsibility” but this recommendation has not been adopted. The change would have removed the emotionally charged term “parental” which often makes it more difficult to negotiate sole parental responsibility orders even where there is considerable family violence and little or no positive communication between the parties.
There is a widely held view amongst lawyers that the protection in s 61DA(2), which states that the presumption of equal shared parental responsibility in s 61DA(1) does not apply if there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence, has been insufficient to prevent equal shared parental responsibility orders being made where there has been significant family violence.
The removal of the presumption of equal shared responsibility will avoid the need for lawyers to reset parties’ expectations from having an “expectation” that orders will be made for equal time, which will also reduce legal costs. In situations of family violence and child abuse, it should be easier to obtain sole parental responsibility orders because there will no longer be a presumption of equal shared parental responsibility. In addition, removing the exceptions to the presumption may mean that a parent will feel more comfortable about consenting to the other parent having sole parental responsibility because they will not be self-labelling themselves as family violence perpetrators or child abusers.
However, currently, s 65DAA has a cascading (or descending) step-like structure. This means that if the parents have equal shared parental responsibility, and equal time is not in a child’s best interests and reasonably practicable, the court must consider whether “significant and substantial” time is “reasonably practicable”.
The proposed removal of the reference to “significant and substantial time” (contained in the current s 65DAA(2)) will arguably make it more difficult for parents and other carers to reach agreement in relation to care arrangements outside of court. In practice, the concept and definition of substantial and significant time provides a useful standard of measurement for parties and professionals. There is a body of case law in which courts have made orders which provide for the non-primary carer parent to have substantial and significant time. The phrase provides a degree of certainty and consistency in the determination of parenting cases, and therefore informs the advice lawyers are able to provide to their clients.
It is likely that the removal of the “substantial and significant time” yardstick will it make it harder to settle cases out of court. Under the proposed reforms set out in the FLAB, there will no longer be any starting point to assist with negotiations, advice and court determinations on the arrangements which are in a child’s best interests. The range of outcomes which could be found to be in the best interests of a child, and the negotiated possibilities, are now arguably much broader. This is likely to be a positive change for victims of family violence who may feel less pressure from the law, the courts, their lawyers and the system generally to agree to parenting arrangements which give significant time to the abusive parent and do not provide for the safety of the primary carer and the child. However, for other families the removal of the “substantial and significant time” yardstick will create greater uncertainty, and perhaps fuel litigation.
Consultation on long-term issues
The proposed s 61CA provides that, subject to court orders, and if it is safe to do so, parents are encouraged to consult each other about major long-term issues and, in doing so, to have regard to the best interests of the child. According to the Explanatory Memorandum, this provision is not enforceable but is intended to guide parents.
A revised s 61DAA sets out that if a parenting order provides for joint decision making by persons in relation to all or specific long-term issues, the order is taken to require each of the persons to consult each other and to make a genuine effort to come to a joint decision.
These amendments seem sensible, despite being platitudes rather than directives, and are often already included in parenting orders, reflecting the principles set out in s 60B(2)(c) and (d).
Codifying the rule in Rice & Asplund
The ALRC Report recommended that the rule in Rice & Asplund (1979) FLC 90-725 be codified so that the FLA is clearer as to the circumstances when the court may discharge, vary or revive parenting orders under the current s 65D(2) (Recommendation 41). The rule reflects the view that constant re-litigation of parenting arrangements is generally not in the best interests of the child.
The proposed section 65DAAA states that, in considering whether to allow a new application, consideration should be given as to whether:
- there has been a change of circumstances that, in the opinion of the court, is significant; and
- it is safe and in the best interests of the child for the order to be considered.
The current vexatious proceedings powers focus on the intent of the applicant rather than the effect that further proceedings may have on the respondent. The new harmful proceedings provision seeks to implement recommendation 32 of the ALRC Report, which referred to Marsden & Winch (2013) FLC 93-560 as an example of a gap in the courts’ powers to scrutinise the institution of further proceedings. Marsden & Winch involved protracted and persistent litigation over many years, which a judge found substantially led to the mother developing post-traumatic stress disorder.
The ALRC concluded that the courts’ existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repeatedly filing new applications and serving those applications on the other party.
Currently, the power to prevent a party from instituting further proceedings is only exercisable where the court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (s 102QB(1)). Section 102Q(1) specifies that vexatious proceedings include those that are conducted in a court in a way so as to harass, annoy, cause delay or detriment, or achieve another wrongful purpose (as well as a range of other considerations).
Simplifying enforcement provisions
The proposed Div 13A of the FLA is intended to be simpler and easier to apply that the current provisions which deal with enforcement of parenting orders. The definition of “reasonable excuse” for contravening a parenting order in s 4(1) will be repealed and replaced with a new definition of “reasonable excuse for contravening a child related order”. The definition refers to s 70NAD (which replaces the current s 70NAE) and expands it to include a defence of a reasonable belief that the contravention was necessary to protect the health and safety of the person, the child or any other person. This change should make family violence an easier defence to rely upon in answer to a contravention application.
Other changes include giving registrars greater power to make parenting orders so that they can make orders that compensate for time lost with the child and new provisions for ordering make up time. The intent of these provisions is not to “compensate” a parent for lost time but to allow the court to order additional care time on a temporary basis to rebuild a relationship between a parent and a child. In addition, there are revised cost provisions.
Independent Children’s Lawyers
The FLAB includes provisions which establish the duties of Independent Children’s Lawyers (ICLs) to seek the views of children by meeting with them before final orders are made, and the role of the courts in overseeing this process. However, there will be exceptions to this requirement because of certain circumstances or the impact on the child.
In proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, there is currently a requirement that an ICL can only be appointed if there are exceptional circumstances to justify it (s 68L(3)). The FLAB removes this requirement.
Restriction on publication of family law proceedings
The ALRC Report recommended that s 121 be redrafted (Recommendation 56). The aims of the redrafting were to:
- improve the clarify of the provision; and
- ensure that it does not discourage communications about family law proceedings beyond its intended scope
The FLAB repeals s 121 and inserts a new Pt XIVB. Proposed s 114N contains a simplified outline of Pt XIVB, including the following statement:
“A communication is not made to the public if the communication is made to a person with a significant and legitimate interest in the subject matter of the communication that is greater than the interest of members of the public generally.”
The most significant aspect of the proposed changes is the change of terminology. The prohibition will be on “communication” rather than on “publication”. It will be an offence to “communicate” an account of proceedings under the FLA to the public.
The proposed 114P(1) defines “communicate”:
“communicate means communicate by any means, including by any of the following:
- publication in a book, newspaper, magazine or other written publication;
- broadcast by radio or television;
- public exhibition;
- broadcast or publication or other communication by means of the internet.”
If there was any doubt before, there will be no further doubt that the internet and social media are caught by the proposed amendments.
Section 114 aims to implement the second aspect of the ALRC Report’s recommendation with respect to s 121, namely, to ensure that the prohibition does not have unintended consequences. The proposed s 114S precedes the exceptions in s 114S(2) (which largely reproduces s 121(9)). Section 114S(1) states that “a communication to a person or body is not a communication to the public if:
“(a) the person or body has a significant and legitimate interest in the subject matter of the communication; and
(b) that interest is substantially greater than, or different from, the interests of members of the public generally.”
According to the Explanatory Memorandum, s 114S(1):
“is intended to apply to a range of circumstances, including in relation to communications with professional regulators and Government agencies or other organisations who provide services to families who are involved in family law proceedings. It only applies where there is a significant and legitimate interest in the subject matter of the communication and that interest is substantially greater than, or different from, the interests of members of the public generally. For example, a party may communicate with a child welfare organisation and include information that identifies the other party to proceedings.”
Section 114S(2)(a) contains an important and useful clarification of the prohibition on communication to ensure that Pt XIVB does not have unintended consequences. It does not extend to:
“a private communication between a party to proceedings and a person who is a member of the party’s family or a friend of the party;”
However, noticeably absent from the proposed amendments are stronger enforcement mechanisms, which is one of the major problems with s 121. Parties are rarely, if ever, penalised because of a s 121 breach.
The FCFCOA Act has an overarching purpose. The FLAB inserts an overarching purpose into the FLA. The proposed s 95(1) FLA states:
“The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration — in a way that promotes the best interests of the child; and
(c) according to law; and
(d) as quickly, inexpensively and efficiently as possible.”
The duties of parties and their lawyers to abide by the overarching purpose are contained in a proposed s 96 to be inserted into the FLA.
This overarching purpose is broader than the current overarching purpose in ss 67(1) and190(1) of the FCFCOA Act. Consequential amendments resolve the overlap between the existing overarching purpose and duties provisions of the FCFCOA Act and those proposed for the FLA.
The objectives included in the overarching purpose will be set out in s 95(2) FLA, and are the same as the current ss 67(2) and 190(2) FCFCOA Act.
Review of operation of the FCFCOA Act
The review of the operation of the FCFCOA Act is to be brought forward by 2 years and will occur between 1 September 2024 and 31 March 2025.
Family Report Writers
There are new proposed provisions to regulate family report writers and family reports. Recommendation 53 of ALRC Report was that a mandatory national accreditation scheme be developed for private family report writers. Standards and requirements for family report writers will be able to be set out in regulations and the regulations will apply regardless of whether they are appointed under Reg 7 Family Law Regulations 1984 or are single expert witnesses appointed by the parties, and will apply regardless of the professional background of the family report writer.
According to the Explanatory Memorandum, the requirements of a “family report” are:
“a report must follow a family assessment, which is a professional forensic assessment undertaken to assist a court and/or the parties decide on parenting arrangements for children of separated parents or caregivers. It is an independent, professional and comprehensive forensic appraisal of the family, done from a social science perspective. The assessment provides information about the needs of children and their relationships with their parents and other significant adults, and of the attitudes and parental capacities of the adults with regard to the children’s needs. The definition reflects and is consistent with the description and purpose of family assessments provided by the Australian Standards of Practice for Family Assessments and Reporting, that are intended to guide the preparation of family reports. Where possible and appropriate the report will also often, but not always, include obtaining and conveying the views of a child.”
CHILD SUPPORT BILL
The Child Support Bill amends the Child Support (Assessment) Act 1989 (Cth), and the Child Support (Registration and Collection) Act 1988 (Cth). According to the Explanatory Memorandum, the amendments:
“• extend the application of the Child Support Registrar’s employer withholding collection powers;
• allow the Registrar to refuse to issue a departure authorisation certificate where a security is offered unless satisfied it is likely that the parent will make suitable arrangements to pay their outstanding liabilities; and
• introduce a new default income for parents not required to lodge a tax return, to simplify the income reporting requirements for payers and payees.”
INFORMATION SHARING BILL
The Information Sharing Bill has been introduced with a view to improve access to vital information from state and territory family violence and child protection systems during family law proceedings. It is a response to Recommendation 2 of the ALRC Report and other recommendations made in other reports and enquiries.
By introducing a new subdivision within Part VII of the FLA to implement an enhanced information sharing scheme as envisaged by the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (National Framework). As explained by the Explanatory Memorandum, this new information sharing scheme:
“(a) repeals current s 69ZW and introduces two different types of information sharing orders (orders for particulars of documents and orders for documents or information);
- broadens the scope of information able to be sought through the new information sharing orders in recognition of the complex nature of family violence, child abuse and neglect risk
- expressly outlines legal exclusions to information sharing, which will be supported by information sharing safeguards to be prescribed by amendments to the Family Law Regulations 1984 (the Regulations), and
- introduces a restriction on the issue of subpoenas without leave of the court to reduce duplication of information requests and information before the court.”
The Information Sharing Bill outlines a new framework for information sharing under the FLA.
The 3 Bills propose a raft of changes to the family law legislative scheme which the courts, family lawyers, and parents and other carers will need to grapple with, assuming they are passed in their current (or a substantially similar) form. In particular, the likelihood is that when courts are making parenting orders there will be increased uncertainty as to the process to be adopted and the range of possible outcomes. Whilst the primary consideration remains the best interests of the child, there is a change of focus. It is possible that the overall end result will be that the law has changed very little, but such a prediction cannot be made at this time.
It is likely that victims of family violence will be better protected by the family law system, with a reduction in the number of orders made for equal shared parental responsibility, which are often used by an abuser to maintain control over a victim post-separation.
The writer thanks the lawyers of Forte Family Lawyers for their work on a submission to the Federal Government with respect to the Exposure Draft on the Family Law Amendment Bill 2023, which has been referred to in part in this article.