Family Law Amendment Act 2023: It’s hard to believe but there are still people who think the legislation has got it the wrong way around! Major changes to Australia’s family law legislation became law in May 2024, when provisions of the Family Law Amendment Act 2023 came into effect. The changes came after numerous reviews and inquiries, following many years of growing concern, in the community and the profession, over an inadequate family law system especially when it comes to the interests of children.
The ABC Life Matters program recently spoke with two family law experts to find out whether the amendments to the Family Law Act 1975 are appearing to make a difference. The ABC spoke with two women with a wealth of family law experience: Meaghan Bradshaw, who is the Family Law and Domestic Family Violence Committee Chair at Women’s Legal Services Australia, and Zoe Rathus AM, a senior lecturer at Griffith University Law School.
Although acknowledging that it’s only been a very short time since the amendments were introduced, the ABC sought to find out from these experts whether the amendments to the Act are having the desired effect of improving the lives of children with parents going through the family law system.
What are the most significant changes under the Family Law Amendment Act?
The Family Law Amendment Act changes the terminology, such as the removal of the wording and concept of “equal shared parental responsibility”, a very confusing concept relating to parents sharing long-term decision-making over their children. The concept was often incorrectly interpreted as meaning 50:50 shared time with the kids. Zoe Rathus explains that confusion in the community was created after the 1996 amendments, when the legislation began to talk about the right of a child to have contact with both parents, if it was in their best interests.
Rathus says this idea that the child has a right of contact became confused, and many people began to think it was the parents who had the right to have contact with the child.
Under Family Law Amendment Act provisions, courts are to make orders for joint or sole decision-making regarding the children. And where previously the courts had to first consider whether equal shared time was also in the children’s best interests, now the courts must first decide on what will be the safest outcome for the children.
Another big change under the Family Law Amendment Act is that an Independent Children’s Lawyer must meet the child whose best interests they were appointed to represent. Previously, this was up to the ICL’s discretion. This is regarded as being an important way to transmit to the courts the child’s views and wishes. Meaghan Bradshaw also points out that the new laws have simplified the factors the court needs to take into account, and that one clear factor is the child’s views and wishes.
The Family Law Amendment Act introduces changes that formalise the rules around making changes to final parenting orders. Parenting orders are put in place till children are 18, unless it can be established that there has been a significant change in circumstances. This has been occurring in the case law but until now had not been reflected formally in the legislation.
The safety paradigm under the Family Law Amendment Act.
Data shows that a very large proportion of matters going through the family court system involve risk factors such as family violence allegations. As such, the amendments are focused on identifying and dealing with safety risks, in order to improve outcomes for children. And with the laws now focused more explicitly on safety and risk, there should be less misunderstanding about the fact that the need to protect children is the most important factor in family court decisions.
Rathus says, “Let’s look at protecting children first, and then look at how we end up with the children having relationships with both parents.” However, she also notes that safety is a nuanced concept. “The general community conjures up ideas of physical safety in the future. When we focus on safety, what we ask ourselves is, will that parent hit that child when they’re there? Or, are they at risk of direct abuse?” She notes this is a limited way of understanding safety.
Rathus points out it’s necessary also to consider more subtle effects of family violence on children. It’s not just the potential future danger a parent may pose, but also the past, or the “legacy”, of family violence that has previously occurred.
“The current laws have a future-focus that requires courts and other decision-makers to think about what might be possible in this family. What could we do here? Which is fantastic in most families. But there’s a small part of me – after 40 years of working in the area, I’m still a bit worried that some of the terminology might mean that it’s too easy to think about what could happen, without thinking enough about what did happen.”
Thinking positive
Bradshaw does report that on the ground in women’s legal services there appears to be a “deeper understanding of domestic violence and the complex nature of it by the court and by lawyers, and in some ways the community as well, but we still have a long way to go.”
Much comes down to adequate training, but Rathus points out that it’s idealistic to believe “we can ever create a system where every single person who’s involved in family law matters has the training required. Training can only go so far.” However, she also acknowledges that “a huge amount of work has been done in relation to training. Lawyers, judges, family report writers, everyone involved in the system is so aware now that this [family violence and safety] is such an issue.”
Ultimately, only time will tell whether the amendments to the family law are creating safer outcomes for children. After all, four months is only a drop in the ocean, in the context where Australia’s existing family laws had been in place for almost 20 years.
For help with your family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law. Call us for a free conference on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
