The family law system in Westen Australia comprises of the Family Law Act 1975 (Cth) and Family Court Act 1997 (WA). The former deals with parenting and property matters arising after the breakdown of a marriage, whilst the latter deals with de facto relationships.
The Family Law Act 1975 gives the Family Court of Western Australia the ability to make parenting orders following the breakdown of marriage. This legislation was first introduced in 1975 and has been the subject of considerable public debate ever since.
There have been several inquiries in recent times about reforming the family law system, most notably the inquiry by the Australian Law Reform Commission (ALRC) in 2019. Various recommendations were made in order to ensure that the system can meet the contemporary needs of families and effectively addresses family violence and child abuse. With respect to parenting matters, one of the key recommendations was to simplify the factors to be considered when determining living arrangements that promote a child’s best interest.
In January 2023, the Australian Government released the draft Family Law Amendment Bill 2023 (Bill) proposing a number of significant changes to parenting matters in the Family Law Act 1975. The aim is to incorporate recommendations made through the ALRC.
Public comment and input into the draft Bill ended on 27 February 2023, and we await the amended draft to be submitted through Parliament.
Some of the proposed changes as part of the reforms include:
- Repealing the presumption of “equal shared parental responsibility” in Section 61DA that requires the Court to apply a presumption that it is in the best interest of a child for the parents to have equal shared parental responsibility (that is, the requirement for parents to consult before making major long-term decisions);
- Repealing the associated provisions in Section 65DAA hereby the Court is required to consider the practicability of equal time, or substantial and significant time;
- Making the “best interest factors” in Section 60CC clearer, by condensing the current lengthy list to six factors;
- Introducing specific provisions about when a parenting order can be changed;
- Making it a requirement (in most cases) for Independent Children’s Lawyers to meet with children to ensure their views are considered when the Court makes parenting arrangements;
- Making it clearer when parties can share details of family law proceedings, including situations of private communications between a party and a family member / friend;
- Introducing new Court powers to mitigate the misuse of the family law system by perpetrators of family violence by:
- Excluding evidence of records relating to the provision of health services (such as medical or counselling records); and
- Making an order to stop a person from filing any further family law applications in circumstances where this is likely to be harmful for the other litigant(s) or child.
We will keep you updated as the draft Family Law Amendment Bill 2023 is further amended and progresses through Parliament.
If you have any questions about the proposed amendments or wish to speak to one of our friendly family lawyers for advice about your matter, do not hesitate to get in touch via phone on (08) 6559 7480 or email on lawyers@josslegal.com.au.