Consultation on draft Family Law Amendment Bill 2023

The Albanese Government has today released draft legislation to make the Family Law Act simpler and safer for separating families and their children.

Recent inquiries, including the 2019 Australian Law Reform Commission inquiry and the 2021 Parliamentary Joint Select Committee inquiry, have highlighted the challenges facing the family law system.

Extensive court delays, protracted litigation, inaccessible support services and inadequate protection for people at risk of family violence are just some of the issues that have dogged the family law system for many years.

The Albanese Government’s draft Family Law Amendment Bill places the best interests of children at the centre of the family law system.

These long overdue proposed reforms replace the often confusing law around parenting arrangements with a simpler child-focused framework that will guide parents who can agree on their own post-separation parenting arrangements. It will also streamline the process for courts who determine the minority of parenting disputes where agreement has not been reached.

Currently, custody arrangements require the court to consider two primary factors and thirteen additional factors; and be guided by four objects, five principles and one presumption. The proposed reforms replace these with six simple ‘best interests’ factors for courts to decide what the best parenting arrangements are for each child.

Recent inquiries have shown that the presumption of ‘equal shared parental responsibility’ provisions are widely misunderstood, causing prolonged litigation and conflict. The draft legislation repeals these provisions, making clear that the best interests of children are paramount.

The draft legislation also:

• Introduces a requirement for Independent Children’s Lawyers (ICLs), when they are appointed, to meet directly with children;
• Increases judicial discretion to appoint ICLs in matters under the Hague Convention on the Civil Aspects of International Child Abduction;
• Provides courts with greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation;
• Provides a definition of ‘member of the family’ in the Family Law Act that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
• Simplifies compliance and enforcement provisions for child-related orders; and
• Creates regulation-making powers to enable Government to establish schemes that set requirements for family law report writers.

These draft amendments implement recommendations from the Australian Law Reform Commission’s 2019 report and elements of the Government Response to the 2021 Joint Select Committee on Australia’s Family Law System.

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 Albanese Government will be acting this year to legislate a simpler and safer Family Law Act for families and their children.

A consultation paper released today to accompany the draft legislation seeks feedback from stakeholders on the amendments in the Bill to improve the drafting and implementation of the reforms.

Submissions on the Bill are due on 27 February 2023.

Information on how to make a submission is available at Family Law Amendment Bill 2023 consultation page.