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    Major Changes Ahead In Family Law

    Major Changes Ahead In Family Law

    The Federal Government has released a set of major changes to the Family Law Act which will come into effect next year.  These proposed changes will be a major overhaul of how parenting matters are dealt with.  The aim of the changes is to make families safer when separating.

    Gone is the requirement that the court must consider equal or substantial time with each parent.  The court’s sole focus in making decisions will be a child’s best interests. The reforms aim to simplify the test used by the court to determine what parenting arrangements are in the best interest of the children.

    The planned changes are based on the recommendations of a review of the Family Law Act by the Australian Law Reform Commission in 2019.  That report recommended the removal of the presumption of equal shared parental responsibility (ESPR). Equal share parental responsibility was inserted into the Family Law Act under Prime Minister Howard’s reforms in 2006.  ESPR means that parents should consult with one another on major decisions in relation to their children.  Courts are required to find that ESPR is presumed between parents unless there is domestic violence or it is not in the child’s interest to be applied. If a court orders that there is ESPR, then a court must consider the child spending either equal time or substantial or significant time with each parent.

    The Law Reform Commission review found that the application of ESPR causes people to incorrectly assume that they were entitled to equal time.  This has caused unnecessary litigation and inappropriate arrangements for children in some cases. 

    Under the reforms the courts will not be required to consider equal or substantial and significant time with each parent, however courts will still be able to orders about shared parental responsibility and equal time.

    Parents will not be required to automatically consult with each other in relation to decisions regarding the children (as is currently the case).  The parent who has the day to day care of a child will have the sole responsibility for making important decisions such as in relation to medical matters.

    Parents will only have to consult with each other on important decisions if the court makes an order requiring them to.

    The test for determining what decisions are in the child’s bet interest and parenting arrangements will be significantly simplified. Currently the courts are required to consider two primary factors, the benefit of a child having a meaningful relationship with both parents, and to protect a child from harm or family violence along thirteen additional factors.

    The current test will be replaced with a set of six matters that the court will consider when determining what is in a child’s best interest.  Those factors are:

    • the safety of the child and their carer;
    • the child’s views;
    • the child’s needs;
    • the benefit of being able to maintain relationships with each parent where it is safe to do so;
    • each carer’s capacity to care for the child and provide for their needs; and
    • any other factor that is relevant.

    The reforms also provide that parenting arrangements ordered by a court cannot be changed unless there have been s significant change in circumstances;

    The reforms also bolster the courts ability to prevent a parent from using the court to harass the other parent.  Courts will now have to ability to exclude a parent’s confidential medical or counselling records, and to prevent a person form filing applications which could harm the other parent or a child.

    A further significant change is that an Independent Children’s Lawyer will now be required to meet with the children.  Under the current system, and Independent Children’s Lawyer is appointed to represent the children’s interests separately from the warring parents and it is uncommon for them to ever actually meet the children they are representing. 

    It is hoped that the reforms will lead to safer outcomes for parent and children and provide a simplified system for them to navigate.

    If you are wanting to know more about the changes in the family law system and how they may affect you and your children, please call and make an appointment with ReesLaw today on 07 4632 8484.

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