Australia’s family law system is about to undergo its most significant changes for about 20 years. The reforms are aimed at modernizing and simplifying the family law system and to place a greater emphasis on safety for families, and children. How the Courts will interpret and implement the changes remains to be seen, however, one thing that is certain is that family lawyers and self-represented litigants need to be prepared for the dynamism of family law that is to come.
What are the key reforms?
The key reforms are:
- Removal of the presumption of equal shared parenting responsibility. Under the current law, there is a rebuttable presumption that the parents of a child will share the responsibility for making decisions that affect the child in the long-term. The reform in this regard is to place a greater emphasis on safety, and, accordingly, the new law will require an order to be made for joint decision-making, if it is safe to do so, and, if it is not safe to do so, then an order may be made for one parent to have sole decision-making power.
- Removal of the mandatory consideration of equal or substantial and significant time. Under the current law, if parents are to share parental responsibility, the Court must first consider whether the child or children spending equal time with both parents is in their best interests, and, if not, then whether the children spending ‘substantial and significant time’ with the non-resident parent is in their best interests. This led to a misinterpretation that equal time is a presumptive starting point. Under the new law, the Court will be required to examine what arrangements will promote the safety of the child and each person who has care of the child, amongst other considerations.
- The creation of a legislative pathway for parents, and other people concerned with the welfare of children, to re-open proceedings after final orders have been made. This reform effectively writes into the legislation what is referred to as the Rule in Rice v Asplund which is a 1979 case that sets out the standard that is required for the Court to restart parenting proceedings after a final decision or agreement has been made. This reform makes this aspect of the law more accessible for self-represented litigants.
Other important reforms include the creation of a new duty for parties and lawyers to act consistently with the overarching purpose of the family law practice and procedure provisions with associated cost consequences for failing to comply with the provisions. Changes have also been made to the way information is shared between the Court and agencies responsible for the care and protection of children, such as Police and State Child Protection bodies.
Where to from here?
For children in Western Australia whose parents are or were married, the changes will take effect from 6 May 2024 and will apply to all cases, whether new or existing, unless a trial is underway when the provisions take effect. The changes will also take effect from 6 May 2024 for children whose parents were not married, except in Western Australia. The WA parliament is in the process of making mirror amendments to the law that covers the children of de facto couples in WA, however, at this stage, no announcement has been made as to when the changes will apply.
If you or anyone you know needs help understanding how the changes may affect your/their case, please contact our family law team at Lynn & Brown Lawyers.
About the Author: Mitchell holds a Bachelor of Arts degree majoring in Psychology from Macquarie University in Sydney and a Diploma in Law from the Law Extension Committee of the LPAB in NSW. In 2019, Mitchell moved to Perth and was admitted as a Barrister and Solicitor in the Supreme Court of Western Australia in August 2020. Mitchell has practiced solely in the family law sphere since being admitted and joined the Lynn and Brown team as a lawyer in November 2021.
