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Why changes to the Family Law Act work against its own cause
Recent legislative changes have left many of us scrambling to adapt to the new framework, asking whether the changes actually worked in upholding the best interests of children, writes Michael Tiyce.
Michael Tiyce
Death, taxes and changes to the Family Law Act. Seemingly, the three true constants in our industry. The most recent amendments, introduced in May of this year, have sparked debate among practitioners and families alike, marking a shift in the principles that have guided family law for decades. This has left many of us scrambling to adapt to the new framework, sitting with the question: have these changes actually worked in upholding the best interests of children?
Rebuttable presumptions of shared parental responsibility and considerations regarding equal time between parents is one of the most notable changes within the amendment. For years, these provisions reflected a widely held understanding that it is generally in a child’s best interests to maintain a meaningful relationship with both parents where it is safe to do so.
While this approach was not without its complexities, it was grounded in social science research and decades of practical experience, recognising the importance of shared decision making and parental involvement in most cases. Under the new legislation, however, there is concern that these principles have been diluted, potentially giving rise to greater conflict between parents and leaving the door open for a malicious party to seek to reduce time or create allegations. These would have been more difficult to maintain under the past legislation.
Critics of the changes argue that removing these guiding principles risks discarding what we know to be effective. For example, some practitioners worry that the amendments could make it easier for a party to allege risk – whether founded or unfounded – in an effort to reduce the other parent’s involvement. At the same time, the lack of clear legislative pathways makes it harder to predict how courts will decide disputes, which could increase uncertainty for families.
It is, however, important to note that these concerns are not without nuance. The previous framework wasn’t perfect, and there have always been exceptions in cases where safety was a genuine issue. The new legislation may offer greater flexibility to tailor outcomes to individual circumstances, though it remains to be seen whether this will consistently benefit children.
Other amendments, such as those addressing the inclusion of family pets in proceedings and the economic impacts of family violence, are noteworthy. The latter, in particular, seeks to provide a clearer framework for addressing the financial repercussions of abuse within property settlements. These changes may ultimately prove beneficial, though it is still too early to fully understand their impact.
Meanwhile, changes to the role of independent children’s lawyers (ICLs), requiring them to meet with children, unless there are compelling reasons not to, appear to codify what experienced practitioners were already doing. While this adds clarity, it is unlikely to revolutionise current practice.
As the legal community continues to adapt to these amendments, early decisions are starting to offer some guidance. However, the absence of a clear legislative pathway leaves room for interpretation, which may create inconsistencies in how these principles are applied.
It will take time before definitive judgements to the long-term effects of the new Family Law Act. While the changes bring challenges, they also prompt important questions about how the system can evolve to better serve families. Practitioners, courts, and policymakers alike must remain committed to ensuring that the welfare of children remains the cornerstone of our family law system.
Michael Tiyce is the principal at Tiyce and Lawyers Family Law Specialists.
