In early February 2023, it was announced that Australia's family law system will witness some major reforms in the months to come. These reforms aim to address issues in Australia's family court system including excessive court delays, lack of adequate support services,
In the current system, many argue that parties who have domestic violence charges against them often weaponise the courts' systems to get access to their former partner and child.
It is argued that the existing law is often confusing, especially when it comes to parenting arrangements. Importantly, the new reforms will also restructure the best interests of the child principle, wherein focus will now be placed on six factors.
One the major proposed changes is the proposal to abandon the presumption of equal shared parental responsibility. The family law act states that courts apply a presumption of equal shared parental responsibility when making any parenting orders.
The issue with this is that it often leaves no choice for parties who are in no position to agree with each other. They are forced to agree. This leads to negative implications in the future.
Importantly, while previously the child's opinion was a 'secondary consideration' under the best interests' principle, the child's opinions and wishes will be given greater weight in the legislation.
Voice for Children
Primarily, it is meant to give children a greater voice. It will also strengthen the system such that it will be mandatory for Independent Children's Lawyers (ICL) to speak to the children involved in the case to gauge their opinions.
It recognises the importance for children to make age-appropriate decisions in order for them to develop the skills necessary to be independent. Of the six factors, the most important one is related to the safety of the child.
Given below is a list of some of the changes proposed in the draft Bill
1. Simplify considerations in relation to best interests of the child principle
2. Withdrawing the presumption of equal shared responsibility
3. Improving provisions for Aboriginal and Torres Strait Islander children
4. Ensuring that Independent Children's Lawyers will speak with children for any cases so as to get their views and opinions on the matter
5. Ensuring that Court does not make final parenting orders unless it has taken into consideration any change in circumstances, and the best interests of the child,
6. Protecting children and parties from the detrimental effects of litigation
Importantly, the new reforms will also place increased focus to include Indigenous forms of 'kinship' in the concept of family in Australian law.
John Bui is the Principal Solicitor for JB Solicitors - a law firm based in Sydney, Australia. John is a Nationally Accredited family law Mediator and Arbitrator with over 10 years' experience in family law and commercial litigation.