WLSA welcomes the introduction of the Family Law Amendment Bill 2023 (the Bill).
We welcome the focus of these reforms on the safety of children and adult victim-survivors in the family law system. This is evident in the removal from the Family Law Act 1975 (Cth) (the Act) of the presumption of equal shared parental responsibility (ESPR) and the removal of the requirement to consider particular forms of time – equal time or substantial and significant time – with each parent. Removing these provisions is essential to ensuring the safety of children and adult victim-survivors during and after separation.
WLSA also supports the following important changes to the family law system:
- The power to make ‘harmful proceedings orders’ to address systems abuse.
- The inclusion of ‘overarching purpose of family law practice and procedure’ provisions, and the accompanying duty, in the Bill, and listing safety and best interest factors before speed, efficiency and minimisation of cost.
- The simplification of the objects provisions. The objects are clear, concise and remove repetition that currently occurs in the objects of the Part (section 60B) and best interest of the child factors (section 60CC).
- The requirement for Independent Children’s Lawyers (ICLs) to meet with children and consider their views. It is important to ensure children and young people can safely participate and express their views in family law processes.
- The inclusion of the proposed section 65DAAA to reflect the common law principles set out in Rice v Asplund to guide a court in how to determine if final parenting orders should be reconsidered.
- The provisions to promote greater accountability of family report writers. The content and recommendations within a family report can significantly influence family law proceedings. Many inquiries have recommended accreditation and greater accountability of family report writers.
- The proposed changes to expand the use of ICLs in cases brought under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
WLSA has a number of recommendations to improve the Bill and to better ensure the safety of children and young people, as well as adult-victim survivors of family violence. Our key concerns are:
- The court will not be required to prioritise safety when making decisions about what is in the best interests of the child.
- The court will not be required to consider the history of violence, abuse and neglect when making decisions about what is in the best interests of the child.
- The rights of Aboriginal and Torres Strait Islander children to enjoy and explore the full extent of their culture are weakened by the Bill’s removal of existing provisions that protect these cultural rights.
- Safety is not prioritised in the overarching purpose provisions.
- Safety has not been appropriately considered in relation to the provisions regarding costs for non-compliance of parenting orders.
It is not possible to have a safe, simple, accessible, and fair family law system without significant investment in the professionals that work in the system, including specialist legal assistance services for victim-survivors of domestic and family violence. Alongside these legislative reforms, the government must commit to properly resourcing the system, training for family law professionals on family violence, cultural safety and trauma-informed practice, and a workforce development strategy to ensure greater diversity across the system.