Proposed changes to the Family Law Act for parenting matters and what you should know

What is changing? 

1. Currently, when determining what is in a child’s best interest, the court is to consider two primary factors and thirteen additional factors. When making parenting orders, this is in addition to a presumption regarding shared parental responsibility and considerations of equal, or substantial and significant, time arrangements. 
   
   The proposed amendments simplify the considerations for ‘best interests’ from fifteen factors to six factors for all children and an additional factor for Aboriginal and Torres Strait Islander children. These include: 
   
   
   • what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm; 
     
     
   • any views expressed by the child; 
     
     
   • the developmental, psychological and emotional needs of the child; 
     
     
   • the benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so; 
     
     
   • the capacity of each proposed carer of the child to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring, and 
     
     
   • anything else that is relevant to the particular circumstances of the child.
     
     These considerations, although more concise, overlap with many of the existing considerations. 

2. Under the existing law there is a presumption of equal shared parental responsibility and a requirement, provided the presumption applies, for the court to consider an equal time arrangement or a substantial and significant time arrangement if it is reasonably practical and, in the child’s, best interest.
   
   The proposed amendment removes this presumption and the associated consideration for equal time. The Australian Law Reform Commission’s Final Report No. 135: Family Law for the Future – An Inquiry into the Family Law System found that the presumption and consideration was commonly misinterpreted by parties as a presumption or entitlement for an equal time arrangement.  

3. A new power is being introduced to provide the Court with the power to restrain a person from filing further family law applications in circumstances where it would be harmful to the other party or children involved. The Court can make a ‘Harmful Proceedings Order’ which requires a party to have any further applications assessed by the court before they are accepted for filing.
   
   Currently the court only has power to dismiss vexatious proceedings in circumstances where an applicant has a history of frequently instituting court proceedings which abuse the court process or are without reasonable grounds. 

4. Under the current law, parties to family law proceedings may subpoena records relating to the provision of health services of another party. This means they can obtain their medical, counselling or psychologically records and have these admitted into evidence.
   
   The government is proposing an amendment which requires the party seeking to obtain the health services records of another party to demonstrate that the disclosure of the information would not have a harmful impact. The court will be required to consider a list of factors when making a decision whether to admit them or not. 

Additionally, the following changes are being made to make the law clearer: 

1. Clarification regarding the publication and privacy of court proceedings. Proposed amendments make it clear that private communication with a friend or family member or with a professional are acceptable, while public communication via online channels such as social media is not allowed. 

2. Amendments to simplify the consequences of not complying with parenting Orders. 

3. An amendment to include in legislation the existing case law which governs the circumstance in which final parenting orders can be reopened through the court.