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An analysis of reforms to the Family Law Act
Recent updates to the Family Law Act 1975 will have a substantive impact on the legal profession, writes Dr Noam Peleg, in collaboration with Unisearch.
Dr Noam Peleg, in collaboration with Unisearch
For years, a growing body of evidence and the experience of practitioners and families engaging with the family justice system showed frustration with the prolonged delays that the system experiences, as well as dissatisfaction with some of the assumptions that the law makes about family living, and the “solutions,” “structures,” or “living arrangements” that it imposes on families following separation. In a reality where nearly 50 per cent of all marriages in Australia end in divorce, and where statistics show that many people divorce in their mid-40s, after being together for 14 years and having two children, some parts of the Family Law Act seem unfit for purpose. Another important problem of the current regime was the inadequate and insufficient protection it provided for survivors of family violence.
The reform is grounded in the 60 recommendations proposed in 2019 by the Law Reform Commission. Its objective, as articulated by the Attorney-General, is to ensure that the best interests of children are at the centre of all parenting matters and to simplify the navigation of the system. Similar promises were made in the past when reforms to the Family Law Act, originally adopted in 1975, were passed in 2011, 2006, and earlier. However, experience has shown that these objectives have not been met.
Other countries are grappling with their family law systems as well, attempting to adapt systems that are grounded in outdated social realities. Many Western societies are much more heterogeneous than they used to be, and the nuclear family model based on a “union for life” is no longer the only, or even dominant, way of living. Legalising same-sex marriage, broadening the meaning of “parent”, and recognising diversity in child-rearing practices are all components of reform that took place in recent years in the UK, some European states and the US.
What does the reform say?
The most significant change involves the revision of the definition of the “best interests principle” and the elimination of key statutory presumptions applied to parenting matters. Currently, when parents cannot agree on parenting matters – typically related to the living arrangements for their children post-parental separation, or any other parenting issues – the Family Law Act imposes a strict regime.
According to this regime, it is assumed that it is in the child’s best interests for both parents not only to have equal legal power to make decisions concerning their children but also to share that power, unless such an arrangement poses a risk to the child. Additionally, this presumption obliges the court to consider an arrangement where the child will spend equal time with both parents.
The reform offers a condensed list of factors to consider when determining, on an individual basis, what will be in the best interests of children in each case. Importantly, it eliminates the presumption of equal shared parental responsibility and the associated requirement to consider equal time.
The revised list of factors includes considerations such as arrangements that promote the safety of the child and their caregivers, the child’s expressed views, the child’s developmental, psychological, emotional, and cultural needs, and the capacity of each person with or proposed to have parental responsibility for the child to meet those needs. Additionally, it considers the benefit to the child of maintaining relationships with parents and other significant individuals, provided it is safe to do so, and any other relevant factors based on the specific circumstances of the child.
This list encompasses a range of considerations, with safety being one among them and no longer given precedence over others. The court is now mandated to take into account the child’s views, a departure from the previous situation where this was an optional consideration. Importantly, the amendment does not impose any age limit and is applicable to children of all ages, including babies and toddlers. It also broadens the definition of “member of the family” to incorporate Aboriginal and Torres Strait Islander concepts of kinship, in contrast with the current reliance on the Western nuclear family model.
Furthermore, the amendment includes measures empowering magistrates and judges to protect adults and children from the adverse effects of prolonged, pointless, revenge-driven litigation. In a similar vein, it seeks to enhance compliance and enforcement of parenting orders.
What this means for the legal profession:
- Acknowledging the child’s views: The new definition of the best interests of the child mandates judges to consider the child’s views. This change holds the potential to foster a sense of inclusion for children and ensure children are heard in family law processes, aligning with Australia’s obligations under the UN Convention on the Rights of the Child.
- Independent Children’s Lawyer mandate: As part of this change, the new law requires the Independent Children’s Lawyer (ICL) to engage directly with children, in contrast to the current situation where ICLs could submit to the court on behalf of children without direct communication.
- Legal aid implications: However, for ICL change to be meaningful, increased funding to legal aid and other ICL providers should be made available. This should be coupled with training on effective communication and obtaining instructions from children of any age.
In September, the government released a draft legislation that covers issues relating to property and financial matters, giving the court greater discretion to manage evidence where family violence is alleged or present between separating couples; trying to ensure the court can access critical information about the risk of violence to a child; trying to improve the Commonwealth Information Orders, and clarifying the circumstances in which a court can order a party to contribute towards the cost of an Independent Children’s Lawyer.
Dr Noam Peleg is a senior lecturer at the UNSW faculty of law and justice. His work focuses on international children’s rights law and its intersection with family law, human rights law, and childhood studies.
