Weighing up the proposed amendments to the Family Law Act

The Federal Government stated they intend to make the Act “simpler and safer for separating families and their children”.

Calls for reform arose after the 2019 Australian Law Reform Commission inquiry and the 2021 Parliamentary Joint Select Committee inquiry revealed pressing challenges facing the family law system. These include court delays, prolonged litigation, inadequate protection for victim-survivors of domestic violence and inaccessible support services.

Dr Noam Peleg, Senior Lecturer at the University of New South Wales (UNSW) Faculty of Law, commended the Government for taking steps to address these issues but questioned the effectiveness of the proposed amendments.

“It seems that the Government went for low hanging fruit in treating the symptoms rather than the root causes of the problem,” Peleg said.

“Limiting people’s access to justice is not always a good solution.

“While some people abuse the system by bringing repeated litigation, that’s not a sufficient reason to block access for others who might have a good and valid reason to revisit settled or final parenting orders.”

The Government asserts that these amendments place the best interests of the child at the centre of the Act. The current law requires the court to consider two primary factors and 13 additional factors when determining the best interests of the child. The proposed reforms replace these with six factors for the court to consider when making a parenting arrangement.

“I think they are playing with the language, but the fundamental problem remains,” Peleg said.

“On paper the current Family Law Act centres around the best interests of the child but we know in practice that’s not always the case.

“Scrapping the current definition of the best interests of the child and replacing it with a narrower, shorter, more ambiguous list of factors might not change things in practise.”

Peleg acknowledged the current family law system is too complex and there is a public misconception about what the Family Law Act does. He suggested a push to educate both the public and lawyers about the family law system.

The draft legislation introduces a requirement that if an Independent Children’s Lawyer (ICL) is appointed by the court, they must meet directly with the child. This differs from the current law which allows ICLs to make submissions on behalf of children without meeting them.

“It’s outrageous,” Peleg said.

“The court would never accept any submission made by a lawyer on behalf of their client if they’d never met the client.

“Fortunately, [the proposed requirement that ICLs meet with children directly] centres children’s voices in the proceedings which was a secondary consideration beforehand.”

While the proposed requirement for ICLs improves the situation, it only applies if an ICL is appointed by the court in the first place.

“It’s putting a band aid on an open wound because the current amendment doesn’t suggest that every child will have an ICL appointed to them which means that too many children will still go unrepresented,” Peleg said.

“If children don’t get their day in court, then we can’t really say that their rights and their best interests have been served.

“There’s a close relationship between the best interest of the child and the right to participation of children.”

Another proposed amendment is the removal of the presumption of equal shared parental responsibility, which has been widely misunderstood and caused prolonged litigation and conflict.

“I agree with the Government that there is a misrepresentation of this presumption in practise,” Peleg said.

“People are under the false assumption that it means that they will spend equal time with their children and more fundamentally, it’s against the history of many families where we know that there is one caregiver.”

Peleg explained that often mothers are the primary caregiver, and fathers are absent from their children’s life prior to separation. The father can then use this presumption as a bargaining chip to control their former partner.

“We end up in a situation where parents, usually fathers, who weren’t very involved in their children’s life, all of a sudden get to spend much more time with them,” he said.

“No one really wants that – not the father nor the children, and women are left worse off financially.”

The Government is attempting to replace the presumption of equal shared parental responsibility with what other jurisdictions term “the primary care presumption”.

“This presumption looks at what has happened in the past – who raised the children, who spent more time with them?” Peleg said.

“It provides for more stability for children and for the primary carer.

“It reduces the abuser’s ability to coerce their ex partners, but the question remains whether it will reduce litigation and whether we’re providing stability and safety for children.”

The Government’s draft Family Law Amendment Bill also provides a wider definition of ‘member of the family’ that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship. The current Act does not consider different cultural models of family.

“My main concern is that even if the rhetoric sounds good, and some of the suggestions look good on paper, experience shows that the implementation and the practises that emerge afterwards are sometimes quite removed from the letter of the law,” Peleg said.

Submissions on the Family Law Amendment Bill will be accepted up until 27 February 2023.