Evolving ‘Best Interests’ Factors For Post-Separation Parenting – What You Need To Know About Family Law Reforms in 2023

by | Nov 14, 2023

Australia’s family law landscape is undergoing significant changes that may impact separated parents. The Family Law Amendment Act 2023 (FLAA) is at the centre of these reforms, aiming to streamline and clarify certain aspects of family law.

These changes will impact parents, children, and legal professionals alike. 

Please note: This article is a summary of an industry article by Forte Family Lawyers Partner Jacky Campbell, which goes much further in-depth, which you can read here.

You can also watch Jacky & Johannes Schmidt’s (Barrister-at-Law & Accredited Mediator) recent Fireside chat about these significant changes here for TEN:The Education Network.

The article and Fireside Chat refer to the proposed Family Law Amendment Bill 2023.  This became law on 6 November 2023, but most of it will not come into effect for 6 months.

Navigating Family Law Reforms: An Overview of the FLAA 2023

In this article, we are delving into the amendments, shedding light on what they mean for separated parents and families in 2023. From redefining “best interests” factors to addressing vexatious court proceedings, we’ll explore the positives, concerns, and potential impact on domestic violence relationships. 

Join us on this journey to better understand the evolving family law landscape and what it may mean for your family.

“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 … 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.”

Jacky Campbell
Partner, Forte Family Lawyers

Family Law Reform Amendment 2023- A shift away from equal time orders?

The amendments aim to streamline the list of “best interests” factors, reducing complexity and eliminating repetition. This change seeks to refocus on children’s needs in family law cases.

Honouring Cultural Rights As Part Of A Child’s Best Interests

One significant addition is a stand alone “best interests” factor mandating the consideration of Aboriginal or Torres Strait Islander children’s right to enjoy their culture. This addition underscores the importance of cultural identity and heritage.

Shifting Away from Equal Shared Parental Responsibility

The FLAB will repeal the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions. This move signals a shift in the approach to parental responsibilities, potentially impacting parenting arrangements.

Simplified Provisions – The Key To Australian Family Law Reforms

The amendments include redrafting provisions related to compliance with parenting orders, designed to make them simpler and more accessible. This change aims to improve the understanding and application of these provisions, although it’s unsure at this stage as to how it will play out.

Registrars – Greater Powers

Registrars will gain the authority to issue compensatory time orders. This additional power is intended to strengthen the enforcement of parenting orders, ensuring that parties comply with court decisions. These changes aim to facilitate rebuilding parent-child relationships rather than merely compensating for lost time. Additionally, revised cost provisions are introduced.

Amplifying Children’s Voices – In The Best Interests of Children

The FLAA outlines Independent Children’s Lawyers’ (ICLs’) duties to meet with children and seek their views before final orders are made. However, exceptions may apply depending on certain circumstances or the impact on the child. 

ICL Obligations to Meet Children – Codified  

The FLAA codifies the criteria for ICLs to meet with and seek the views of children involved in family law proceedings. This change emphasises the importance of hearing children’s perspectives.

Hague Convention Proceedings 

The FLAA removes restrictions on judicial discretion to appoint ICLs in proceedings under the Hague Convention. This move acknowledges the value of ICL involvement in international child abduction cases.

Transparent Publication Restrictions – Privacy Given To Family Court Proceedings

The legislation aims to clarify and update restrictions on the publication of family law proceedings. This step ensures that information disclosure aligns with the law and maintains the privacy and sensitivity of family law cases.

Continuing Family Law Reforms – FLAA 2023

The FLAA is the initial phase of anticipated family law reforms. Future legislative changes address property settlements between separated couples. These reforms are part of an ongoing transformation of the family law landscape following establishing the Federal Circuit and Family Court of Australia (FCFCOA) in 2021.

Staying Informed – Navigating the Evolving Family Law Landscape

The changes to ss 60B and 60CC indicate a deliberate shift in the legal landscape concerning family law. The Explanatory Memorandum highlights the intent to reduce complexity and repetition within “best interests” considerations. The emphasis is now placed on individual children’s needs, rather than maintaining a formula that might distract from these needs.

Flexible Decision Making

The revised s 60CC grants the court the flexibility to consider the unique circumstances of each parenting matter, always prioritising the child’s best interests. This change indicates that outcomes may vary in individual cases as different factors receive varying weights.

Equal Shared Parental Responsibility – The End of a Misinterpreted Presumption

The FLAA repeals the presumption of equal shared parental responsibility under s 61DA (Recommendation 7). Introduced in 2006, this presumption was often misinterpreted as guaranteeing equal shared time with children.

Retaining “Parental Responsibility”

Recommendation 8 of the Australian Law Reform Commission (ALRC) was to change the term “parental responsibility” to “decision-making responsibility,” but this proposal was not adopted. This change could have potentially reduced emotional complexity of the term.

Addressing Family Violence Concerns

The current section 61DA(2) provides some protection, stating that the presumption does not apply when there are reasonable grounds to believe that there has been child abuse or family violence. However, this provision may not always prevent equal shared parental responsibility orders from being made.

Removing “Substantial and Significant Time”

The removal of the reference to “significant and substantial time” in s 65DAA(2) could impact agreements outside of court. This term is currently a standard of measurement, offering consistency and certainty in parenting cases. Its removal might make it harder for parents to reach agreements and for lawyers to give advice.

Broader Negotiation Range

The absence of this yardstick creates a broader spectrum of possible outcomes. While the objective is to benefit victims of family violence, it might lead to increased uncertainty and potential litigation in other cases.

Guiding Parental Collaboration

The new s 61CA encourages parents to consult on significant long-term issues while considering the child’s best interests. Although not enforceable, it serves as a guiding principle to promote collaborative decision-making.

Fostering Joint Decision-Making

Revised s 61DAA establishes that parenting orders promoting joint decision-making require individuals to consult and genuinely reach joint decisions on long-term issues. These changes align with existing principles but emphasise the importance of collaboration.

These legislative amendments aim to create a more child-centred approach, allowing flexibility in decision-making while addressing the misinterpretation of equal shared parental responsibility. The impact on parenting arrangements, settlements, and collaboration among parents remains to be seen.

Codifying the Rice & Asplund Rule – Ensuring Clarity and Best Interests

The ALRC Report’s Recommendation 41 suggested codifying the Rice & Asplund rule (1979) FLC 90-725. The new section 65DAAA outlines that consideration of a change to parenting arrangements requires two factors: a significant change of circumstances, as determined by the court, and that it is safe and in the child’s best interests for a change to be considered. This codification aims to prevent constant re-litigation of parenting orders, emphasising the child’s well-being.

Addressing Harmful Proceedings – Targeting Harmful Litigation

Current vexatious proceedings powers focus on the applicant’s intent, overlooking the effect of repeated proceedings on the respondent. Inspired by Recommendation 32 from the ALRC Report, the harmful proceedings provision addresses gaps in scrutinising the institution of further proceedings. This change enables the court to intervene when one party uses repeated applications to oppress the other, as seen in the Marsden & Winch case.

Streamlining Enforcement Provisions Simplifying “Reasonable Excuse”

The new Div 13A of the FLA aims to simplify enforcement of parenting orders. It replaces the “reasonable excuse” definition with “reasonable excuse for contravening a child-related order.” This change includes a defence for contravention based on a reasonable belief that the action was necessary to protect someone’s health and safety, making family violence a more accessible defence.

Improving Clarity

The ALRC Report recommended redrafting s 121, resulting in the FLAB’s repeal of this section and the introduction of Pt XIVB. The new s 114N aims to simplify and clarify the prohibition on communication, replacing “publication” with “communication” regarding family law proceedings. This prohibition extends to various forms, including online communication, such as social media.

Balancing Privacy and Communication

Section 114S establishes exceptions to the prohibition, ensuring that legitimate, significant interests in the subject matter of the communication are not inadvertently affected. The prohibition does not extend to private communications between parties and their family members or friends.Notably, the amendments lack stronger enforcement mechanisms, a longstanding issue with s 121, with parties seldom penalised for breaches.

Potential Concerns

It’s hard at this stage to understand how changes will be applied in real life, but there are some potential concerns and expected positives arising from the amendments, including:

Potential for Increased Litigation

The elimination of the equal shared parental responsibility presumption may lead to a higher likelihood of disputes and litigation between separated parents. Parents may find reaching agreements without a default presumption more challenging, potentially resulting in prolonged legal battles.

Uncertainty in Parenting Arrangements

Removing the phrase “significant and substantial time” could create ambiguity in parenting arrangements. While this change benefits victims of family violence, it might lead to increased uncertainty and potential disputes among other families.

Impact on Children

The shift in the legal landscape may have unintended consequences for children. While the reforms aim to prioritise the child’s best interests, the changes could expose children to extended legal proceedings and disputes or higher rates of parental conflict. 

Potential Positives

Protection for Victims of Family Violence

 One positive aspect of these reforms is the increased protection for victims of family violence. Removing the equal shared parental responsibility presumption may make it easier to obtain sole parental responsibility orders in cases involving family violence, enhancing the safety of primary carers and their children.

More Child-Centred Approach

The reforms place a stronger emphasis on children’s voices and needs, ensuring that their perspectives are considered in family law proceedings. This shift toward a child-centred approach reflects a more comprehensive understanding of children’s well-being.

Clarity and Simplification

The changes to “best interests” factors, compliance provisions, and publication restrictions aim to provide more clarity and simplify family law processes. This can benefit both parents and legal professionals, making the system more accessible and understandable.

Impact on Domestic Violence Relationships

These reforms are particularly significant for cases involving domestic violence. The elimination of the equal shared parental responsibility presumption and the emphasis on safety in parenting arrangements can be beneficial for victims of domestic violence. It reduces the potential for perpetrators to use shared responsibility as a means of control and intimidation.

However, it’s essential to note that while these reforms strengthen the legal framework to protect victims, their effectiveness also depends on proper implementation and enforcement. Legal professionals, courts, and support services ensure the reforms translate into safer environments for victims and their children.

Separated parents in situations involving domestic violence should consult with legal experts and support organisations to navigate the evolving family law landscape effectively and ensure the safety and well-being of all parties involved.

A Final Note

These reforms represent the initial phase of legislative changes designed to address family law issues in Australia. They aim to simplify the family law process while introducing fundamental changes to parenting arrangements. This comes after establishing Australia’s Federal Circuit and Family Court in 2021.

The complete Family Law Amendment Bill is here (November 8th, 2023 update).

Separated parents should stay informed about these ongoing reforms and seek legal advice to effectively navigate the evolving family law landscape.

Please note that this article is not designed as legal advice. Please contact a legal professional to discuss any content shared in this article and if it is relevant to your individual situation. 

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