Attorney General takes aim at FCFCOA legislation over the best interests of the Child.

Earlier this week the Attorney General released a draft of the Family Law Amendment Bill 2023. The Bill is an ambitious overhaul of several key sections of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia Act 2021 (Cth), that aims to improve the current Family Law System

The proposed reforms will:

1. Make the Court more responsive to Family Violence, Child Abuse and Neglect;

2. Simplify and clarify complex legislation;

3. Implement culturally appropriate processes and services for Aboriginal and Torres Strait Islander families;

4. Reduce the hardship and financial burden caused by prolonged litigation;

5. Enable Children to better express their views in proceedings;

6. to address inconsistencies in the level of competency and accountability of the assorted Family Law professionals;

7. Crack down on non-compliance with orders and better enforce parenting orders.

Presumption of Equal Shared Parental Responsibility

Currently the FCFCOA must act as if it is in the Child's best interests for the parents to share parental responsibility for the Child. The only exception is if the Court believes that one of the Child’s parents or carers has engaged in Child abuse or family violence.

Equal shared parental responsibilities means the Child’s parents must consult with each other when making decisions for the Child, e.g. the Child’s education or medical treatment. Parents often assume that this equal shared parental responsibility means ‘equal shared care’, but this isn’t the case.

Under the proposed Bill, equal shared parental responsibility would be replaced by the presumption of joint decision making about major long-term issues. Parental responsibility for day-to-day matters would be exercised solely by the person who has physical care of the Child. When making major decisions about their Child, parents won’t be legally obligated to consult each other.

Equal time or Significant and Substantial time with the parents

The current legislation requires the Court to consider making an order for equal time with the parents when making an order for equal shared parental responsibility, unless equal time is impracticable or not in the Child’s best interest. If the Court finds equal time isn’t in the Child’s best interest, the Court must consider a spend substantial and significant time order (“S&S Time”).

S&S time means that:

1. The Child must spend time with the parent on weekdays, weekends and holidays;

2. The Child must spend time with the parent on special events and occasions in the parent’s life;

3. The parent must be involved in the Child’s daily routine;

4. The parent must be involved in the Child’s special events and occasions.

The reforms would repeal the requirement to consider equal time and S&S Time because they don’t focus on the Child’s best interests, exacerbate conflict between the parties and add an unnecessary step to the Court’s decision making process.

How the Court determines what is in the best interests of the Child is being overhauled.

The bill will streamline the Child’s Best Interests factors from 15 factors to 6. These 6 factors are:

1. Which arrangement best protects the Child and their carers from family violence, abuse, neglect or other forms of harm;

2. The views of the Child;

3. The Child’s developmental, psychological and emotional needs;

4. The proposed carer’s capacity to provide for the Child’s developmental, psychological and emotional needs [Including their ability and willingness to seek support in caring for the Child];

5. If the Child will benefit from maintaining a relationship with both parents and other significant people, if it is safe to do so;

6. Any other factor relevant to the Child’s particular circumstances.

New powers granted to the FCFCOA.

If the proposed Bill were to pass, the Court will gain the express power to exclude protected confidences as evidence. Under the power, confidential documents such as medical or counselling records cannot be admitted as evidence, unless allowed by the Court. The Bill proposes that admitting protected confidences in Court proceedings would be detrimental to the individual and to the public’s confidence in the Family Law system. When determining whether protected confidences should be admitted, the Court must consider if allowing the documents to be admitted is in the best interest of the Child.

This represents a drastic shift from the current state of protected confidences. Currently the Evidence Act 1995 (NSW) requires that the patient and treating practitioner argue why protected confidences should not be admitted.

The second express power would allow the Court to make harmful proceedings orders to restrain individuals from filing and serving further family law applications on the respondent without first obtaining leave of the Court. This would prevent the Applicant from oppressing the Respondent by repetitively filing and serving applications on them. The power aims to limit the harm to the Respondent arising from continuous litigation, as the Court will not allow applications that are vexatious, frivolous or an abuse of proceedings and do not have a reasonable prospect of success.

The Court cannot make a harmful proceedings order without hearing the person or giving the person to opportunity to be heard.

At present, the Court can only prevent a person from bringing further proceedings, when the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in an Australian Court or Tribunal.

This article is general in nature and is not legal advice. If you need help with a Family Law matter, Voice Lawyers hear you. We help people navigate the complexities of the Family Law Act and the Federal Circuit and Family Court of Australia system with confident, practical advice.

You can contact us on 02 9261 1954 or by email at voice@voicelawyers.com. You can also use the link on our website to book a consultation to speak with one of our lawyers.