The Australian Labour government Monday released a draft of the Family Law Amendment Bill 2023 to amend the Family Law Act 1975. In a statement, Attorney-General Mark Dreyfus said the reforms seek to prioritize the best interests of the child and address criticisms that the family law system is slow, expensive and traumatic for families.
The proposed law sets out a child-focused framework for resolving family disputes, including repealing the Section 61DA presumption of “equal shared parental responsibility.” The provision requires courts to apply the presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child” when making family orders.
The objects behind achieving the “best interests of the children” in the family law system under Section 60B replaces the principle of “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives…” with ensuring “that the best interests of children are met.” The draft Bill simplifies the list of factors the court has to consider in the child’s “best interests” to six factors. These include the safety of those caring for the child, any views expressed by the child, the child’s developmental, psychological and emotional needs, each carer’s capacity to meet the child’s needs, the child’s ability to maintain a relationship with both parents and other people who are significant to them where safe, and any other considerations relevant to the child’s personal circumstances.
The legislation also requires Independent Children’s Lawyers to meet directly with children, grants powers to the court to protect children from prolonged and adversarial litigation and extends the definition of “member of the family” in the Act to include Aboriginal and Torres Strait Islander concepts of family and kinship.
The reforms follow a 2019 Australian Law Reform Commission inquiry and a 2021 Parliamentary Joint Select Committee inquiry, which identified several areas for reform in the current family law system. The former found the presumption of “equal parental responsibility” was often misinterpreted and resulted in inappropriate care arrangements for children, prolonged litigation, and increased conflict. In 2021, the Coalition government implemented recommendations to merge the Federal Circuit Court of Australia and the Family Court of Australia into one single-family court structure to improve the court’s efficiency. However, Dreyfus noted, “In the nine years the former government was in office there were at least two dozen reviews into the family law system, with hundreds of recommendations that were simply ignored.”
The Family Law Act has faced criticisms for its enshrined principles surrounding parental rights, and the lack of response to family violence, litigation abuse and the overburdening of family courts.
