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Parenting & Child Custody Law, Insights & Tips 2023

The Complex World of Parenting and Children in Family Law

Dealing with proper parenting and “custody” under the Family Law Act, insights, facts and information with expert legal tips, from Senior Lawyer Jaswinder (Jas) Sekhon, Principal, Goldman Law.

Parenting Plans and “Guided Self Help” start from fixed fees of $200 to $500. Full service where we handle it all will be about $1,200 in lawyers’ fees. Consent Orders start at $1,500 excluding disbursements (Government Fees).

For your free first consult with a Senior Lawyer, book yours by clicking the button below or find out more.

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Parenting in Australian Family Law

Step 1

Every family’s journey is unique, particularly when navigating the complexities of separation. As an experienced family law practitioner, I’m here to help shed light on some crucial elements of Australian family law: Parenting Orders, Child Support, and Parenting Plans.

Australia’s legal system recognises that a child’s welfare is paramount in any situation. Hence, Parenting Orders are put in place as a formalised structure for parenting agreements. Parents who may require more structure or legally binding commitments often seek this option to ensure adherence from all parties involved.

In our view, we have had far too many ineffective changes to the Family Law Act. We need to question this constant updating and the burden of the increasing costs and the delays. This is why we introduced “Guided-Self-Help” to save more than 50% in lawyers’ fees to help our clients and the public in response.

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

Step 2 - What changes result from the Family Law Amendment Bill 2023

The Family Law Amendment Bill 2023 (the Bill) will amend the Family Law Act 1975, with the stated purpose being to make the family law system safer and simper, and ensure the best interests of children are placed at its centre.

The need for structural and systemic reform of family law has been a consistent theme in the plethora of inquiries and reports produced over the last 20 years.[4]

Professor Patrick Parkinson, a family law academic argues amending the core elements of the law on parenting after separation, goes very far beyond what is necessary and justified in order to remedy perceived deficiencies in the current law.

Parenting Orders if they are not by consent can cost clients many tens of thousands of dollars if disputed. If there are parenting disputes, factor in this as well as child stress and extreme emotional stress. Academic commentary is devoid of the actual practice of Family Law Courts in this area. We can guide you to achieve the least cost, pain and stress free parenting solutions

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

professor Parkinson also argues against the removal of many of the provisions that emphasise the importance of children’s relationship with their parents, as this may send a message that parents are no longer to be valued or valued as much as previously.[28]

What These Reform to The Family Law Act Now Promise Other Than More Headache?

  • Amend the parenting order framework by refining the list of ‘best
  • interests’ factors, removing the presumption of equal shared parental responsibility; and
  • related equal time and substantial and significant time provision, and clarifying the circumstances in which a court can vary an existing parenting order;
  • allow registrars of the Federal Circuit and Family Court of Australia (FCFCOA) to be delegated the power to impose a make-up time parent order in contravention proceedings;
  • to introduce ‘harmful proceedings orders’ and extend the ‘overarching purpose of family law practice and procedure’ and the accompanying duty to all proceedings instituted under the Family Law Act 1975.

Parenting Plans

Step 3 The Best Approach If Your Spouse Agrees

A less formal approach to organise parenting agreements are Parenting Plans. These are distinct from Parenting Orders due to their informal nature and inherent flexibility. They are non-binding and can be changed as circumstances evolve. Families often choose Parenting Plans when they want to avoid court intervention, preserving an amicable and cooperative parenting environment.

Dr. Bruce Smyth, a specialist in family studies from ANU, notes, “The informality of Parenting Plans can serve as a strength, enabling parents to tailor arrangements to their unique family situations.”

Negotiating Parenting Orders and Parenting Plans

Parenting Orders (Consent Orders) are one way to formalise a parenting agreement. They can address various concerns, including parental responsibilities for both long-term and day-to-day decisions and the time children spend with each parent.

Prof. Belinda Fehlberg, a family law scholar at Melbourne Law School, explains, “Parenting Orders provide a legal structure that outlines the responsibilities and rights of each parent, facilitating a clear and fair parenting approach.”

“Parenting Plans,” as Dr. Bruce Smyth elucidates, “provide a practical framework for parenting, allowing both parents to negotiate and agree on arrangements that best suit their child’s needs.” 

Sensible parents should agree a simple parenting plan from $500 and stay out of the mess of the Court system, in our view.

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

On the other hand, Parenting Plans provide a flexible, informal approach to determine parenting arrangements. Often, they are used when parents initially separate and need a practical method to establish arrangements that serve the children’s best interests.

Understanding Child Support

The Child Support Agency administers child support assessments, separate from parenting proceedings in the Federal Circuit and Family Court of Australia. Any parent or non-parent carer can apply for an administrative assessment under the Child Support Assessment Act. The Agency uses a formula based on the actual costs of raising a child and the parents’ respective incomes to determine the amount of child support payable.

“Child support assessment,” states Prof. Patrick Parkinson of Sydney Law School, “is a critical process that ensures a fair and equitable financial support system for the child, putting their best interests at the forefront.”

Child support should be dealt with a simple private child support agreement between the parties and they start from $500 for us to draft. Professor Parkinson ignores the practical realities and is wrong in our view about “fair and equitable”. Fathers who earn cash jobs or show reduced income via self-employment structures avoid this. Or Fathers who pay a lot and where the mother doesn’t spend the money on the child. Surely, there must be a say on the spend side? international clients, and these are issues that 99% of family lawyers are unable to properly deal with.

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

Recognising the Role of Grandparents

In instances of separation, grandparents may face challenges in maintaining relationships with their grandchildren. However, the Family Law Act acknowledges the essential role grandparents play and the impact separation can have on their relationships. Thus, the Act permits grandparents to apply for Parenting Orders to spend time with their grandchildren if they wish to do so.

Resolving Family Disputes & Mediation

Family Dispute Resolution is a process designed to help families reach an agreement without resorting to court intervention. It involves an independent Family Dispute Resolution Practitioner (FDRP) who helps parents explore various options to resolve disputes, encompassing parenting and financial matters. Parents can then formalise any agreed-upon parenting arrangements through a Parenting Plan or Consent Order.

We have seen confusion in the courts between bringing proceedings in Australia, or say Hong Kong or India? Carefully consider which jurisdiction you should bring proceedings in and where it’s better for you? We regularly advise international clients, and these are issues that 99% of family lawyers are unable to properly deal with.

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

Prof. Rachael Sharman from the University of the Sunshine Coast shares, “Family Dispute Resolution is a vital tool in minimising conflict and promoting cooperation, which in turn benefits the entire family, especially children.”

Managing Relocation and Travel

Relocation with a child requires the other parent’s consent under Australian law. It ensures the child’s best interest and equal shared parental responsibility, promoting a child’s right to meaningful involvement from both parents. Family law courts can intervene to prevent a relocation that’s deemed against a child’s best interests, but they cannot prohibit a parent from relocating to a new city, state, or country.

Dr. Judy Cashmore, Associate Professor in Socio-Legal Studies at Sydney University, advises, “Relocation cases can be complex. The best interests of the child are always central in any decision, balancing the right to maintain meaningful relationships with both parents and the freedom of parents to relocate.”

Grandparents often have a profound and positive influence on their grandchildren,” emphasises Dr. Robert Emery, a noted psychologist and family law expert with whom we agree. However, it is the rare Grandparent that can afford a contested Court application. Guided Self Help won’t work if you are not savvy with Microsoft Word and online Court portals either! international clients, and these are issues that 99% of family lawyers are unable to properly deal with.

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

Contested Parenting & Contravention of Court Orders

Step 4 How Much and How Long?

Assuming that you can afford to go to mediation or use a government service like Relationships Australia? Relationships Australia usually has a wait of several months and is cheap. Private mediation will definitely cost you a few thousand dollars and is quicker.

Of course, if there is a risk of psychological or physical harm to the children then we don’t need to do the above and can seek urgent interim orders in the best interests of the children.

Of course, all of the above is before you get to Court and the Court may order extra mediation still; and if the dispute continues there may be an ICL involved as well as family reports and psychological assessments. Budget at least $20,000 for all this, before you get to a hearing in a year or so time.

Over the last few years there have been, in theory, quicker contravention lists and if a parent has contravened standing court orders, please contact us to quickly review your facts and we may seek urgent contravention orders to avoid uncertainty for the children.

As an accredited mediator, we do not act as a FDRP. A typical FDRP mediation can cost $5,000 for each party. We offer mediation at a reduced rate if the parties are willing to compromise. Otherwise join the expensive queue and wait up to six months. Call us and we will guide you through this maze. international clients, and these are issues that 99% of family lawyers are unable to properly deal with.

Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law

Conclusion and Help for The Parenting Journey in Family Law

Remember, navigating through family law matters can be complicated and emotionally challenging. But understanding these foundational elements can empower you in making the right decisions for your family. As your guide in this journey, I encourage you to approach our family law experts or seek other legal advice to make informed decisions that protect the interests of all parties involved, most importantly, your children and to stay away from prolonged expensive parenting disputes if you can.

Citations

Following footnotes detail the sources cited:

  1. Erickson, N. S. (2006). The Lawyer’s Guide to Family Law. American Bar Association.
  2. Rhoades, H. (2017). “Reforming Australia’s Parenting Laws: A Plea for Practical Realities.” Sydney Law Review.
  3. Smyth, B. (2009). “Parenting after Separation — A Position Statement prepared for The Australian Psychological Society.” Australian Psychological Society.
  4. Parkinson, P. (2011). “Australian child custody law and the principle of equal shared parental responsibility.” International Journal of Law, Policy and the Family.
  5. Fehlberg, B., & Millward, C. (2014). “Family Law in Australia: Family law, gender neutrality, care and parenting.” Journal of Social Welfare and Family Law.
  6. Emery, R. E. (2012). “The Truth About Children and Divorce: Dealing with the Emotions So You and Your Children Can Thrive.” Penguin Group.
  7. Sharman, R. (2018). “Conflict Resolution in Family Breakdown: The Role of Family Dispute Resolution Practitioners.” Australian Family Studies Journal.
  8. Cashmore, J., & Parkinson, P. (2008). “Children’s and Parents’ Perceptions on Children’s Participation in Decision Making After Parental Separation and Divorce.” Family Law Quarterly.

Parenting & Children Quick Facts & Fees 2023

This Costly Family Law Absurdity Must Stop!" 68 Family Law Reports & Inquiries Since 1975

How Good Must the System Be Now? 
At the request of the committee, the Australian Parliamentary Library compiled the following list of family law inquiries and report.

The Family Law Act 1975 received Royal Assent on 12 June 1975 and commenced on 5 January 1976. The ALRC noted in its 2019 report that ‘since the inception of the Family Law Act and the creation of the Family Court, there have been numerous inquiries into the family law system…more recent inquiries in Australia have focused on the intersection between family violence and family law’.1

The Family Law Act 1975 received Royal Assent on 12 June 1975 and commenced on 5 January 1976. The ALRC noted in its 2019 report that ‘since the inception of the Family Law Act and the creation of the Family Court, there have been numerous inquiries into the family law system…more recent inquiries in Australia have focused on the intersection between family violence and family law’.1

Family law inquiry and report

  • 1974 Senate Standing Committee on Constitutional and Legal Affairs, Law and administration of divorce and related matters, and the clauses of the Family Law Bill 1974, Final Report, October 1974.
  • 1980 Joint Select Committee on the Family Law Act, Family law in Australia, August 1980. (volume 1 and volume 2)2
  • 1986 P McDonald (ed), Settling up: Property and income distribution on divorce in Australia, Australian Institute of Family Studies, 1986.
  • 1987 Australian Law Reform Commission, Matrimonial property, Report No. 39, 1987.
  • 1987 Family Law Council, Access–some options for reform, 1987.
  • 1988 Family Law Council, Arbitration in family law, February 1988.
  • 1991 Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The retiring age of judges of the Family Court of Australia, September 1991.
  • 1992 Family Law Council, Patterns of parenting after separation, April 1992.
  • 1992 Family Law Council, The interaction of bankruptcy and family law, June 1992.
  • 1992 Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Family Law Act 1975: Aspects of its operation and interpretation, November 1992.
  • 1994 Australian Law Reform Commission, Equality before the law: Justice for women, Report No. 69, Part 1, 1994, Chapter 9: Violence and family law
  • Australian Law Reform Commission, Equality before the law: Women’s equality, Report No. 69, Part 2, 1994.
  • 1994 B Smyth (ed), Parent–child contact and post-separation parenting arrangements, Research Report No. 9, Australian Institute of Family Studies, June 2004.
  • 1995 Australian Law Reform Commission, For the sake of the kids: Complex contact cases and the Family Court, Report No. 73, 1995.
  • 1995 Joint Select Committee on Certain Family Law Issues, Funding and administration of the Family Court of Australia, November 1995.
  • 1996 Family Law Council, Family law appeals and review: An evaluation of the appeal and review of family law decisions, June 1996.
  • 1996 Family Law Council, Involving and representing children in family law, August 1996.
  • 1996 K Funder and B Smyth, Family law evaluation project 1996: Parental responsibilities: Two national surveys: (Part one: Report), Australian Institute of Family Studies, 1996.
  • 1997 Australian Law Reform Commission, Seen and heard: Priority for children in the legal process, Report No. 84, 1997. See: Chapters 13, 15, 16.
  • 1998 Family Law Council, Child contact orders: Enforcement and penalties, June 1998.
  • 1998 House of Representatives Standing Committee on Legal and Constitutional Affairs, To have and to hold: Strategies to strengthen marriage and relationships, June 1998.
  • 2000 Family Law Council, Litigants in person, August 2000.
  • 2001 Family Law Pathways Advisory Group, Out of the maze: Pathways to the future for families experiencing separation, AGD, Canberra, 2001.
  • 2001 Family Law Council, Cultural-community divorce and the Family Law Act 1975: A proposal to clarify the law, August 2001.
  • 2002 Family Law Council, Family law and child protection: Final report, September 2002.
  • 2003 House of Representatives Standing Committee on Family and Community Affairs, Every picture tells a story: Inquiry into child custody arrangements in the event of family separation, December 2003.
  • 2004 Family Law Council, Pathways for children: A review of children’s representation in family law, August 2004.
  • 2004 Family Law Council, Recognition of traditional Aboriginal and Torres Strait Islander child-rearing practices: Response to recommendation 22: Pathways report, Out of the maze, December 2004.
  • 2006 Family Law Council, Relocation, May 2006.
  • 2007 Family Law Council, Collaborative practice in family law, February 2007.
  • 2007 J McIntosh and C Long, Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution, March 2007, prepared for the Attorney-General’s Department.
  • 2007 Family Law Council, Improving post-parenting order processes, October 2007.
  • 2007 L Moloney et al, Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study, Research paper No. 15, Australian Institute of Family Studies, 2007.
  • 2007 D Higgins, Cooperation and coordination: an evaluation of the Family Court of Australia’s Magellan case-management model, prepared by the Australian Institute of Family Studies for the Family Court of Australia, 2007.
  • 2008 D Semple, Future governance options for federal family law courts in Australia: Striking the right balance, prepared for the Attorney-General’s Department, August 2008.
  • 2009 J McIntosh et al, Children beyond dispute: A four year follow up study of outcomes from child focused and child inclusive post-separation family dispute resolution, April 2009, prepared for the Attorney-General’s Department.
  • 2009 R Chisholm, Family courts violence review, November 2009.
  • 2009 Family Law Council, Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues, December 2009.
  • 2009 R Kaspiew et al, Evaluation of the 2006 family law reforms, Australian Institute of Family Studies, December 2009.
  • 2010 Australian National Audit Office, Implementation of the Family Relationship Centres initiative, Performance Audit Report No. 1, 2010–11.
  • 2010 D Bagshaw et al, Family violence and family law in Australia: the experiences and views of children and adults from families who separated post-1995 and post-2006, 2 vols, Monash University, University of South Australia, James Cook University, for the Australian Attorney-General’s Department, April 2010. (volume 1 and volume 2)
  • 2010 J Cashmore et al, Shared care parenting arrangements since the 2006 family law reforms: Report to the Australian Government Attorney-General’s Department, UNSW, Social Policy Research Centre, May 2010.
  • 2010 J McIntosh et al, Post-separation parenting arrangements and developmental outcomes for infants and children: Collected reports, prepared for the Australian Government Attorney-General’s Department, May 2010.
  • 2010 Australian Law Reform Commission and NSW Law Reform Commission, Family violence–A national legal response, Report No. 114, 2 vols, November 2010. (volume 1 and volume 2)
  • 2010 L Qu and R Weston, Parenting dynamics after separation: A follow-up study of parents who separated after the 2006 family law reforms, Australian Institute of Family Studies, December 2010.
  • 2011 National Alternative Dispute Resolution Advisory Centre, Maintaining and enhancing the integrity of ADR processes, February 2011. See: Chapter 6: Family dispute resolution.
  • 2012 Family Law Council, Improving the family law system for Aboriginal and Torres Strait Islander clients, February 2012.
  • 2012 Family Law Council, Improving the family law system for clients from culturally and linguistically diverse backgrounds, February 2012.
  • 2013 R Chisholm, Information-sharing in family law & child protection: Enhancing collaboration, Attorney-General’s Department, Canberra, March 2013.
  • 2013 Allen Consulting Group, Research on Family Support Program family law services: Final report to Australian Government Attorney-General’s Department, May 2013.
  • 2013 Family Law Council, Report on parentage and the Family Law Act, December 2013.
  • 2014 KPMG, Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, prepared for the Attorney-General’s Department, March 2014. (Appendices A-C; Appendices D-G)
  • 2014 R Chisholm, The sharing of experts’ reports between the child protection system and the family law system, Attorney-General’s Department, Canberra, 2014.
  • 2014 R Kaspiew et al, Independent children’s lawyers study: Final report, 2nd edn, June 2014.
  • 2014 Productivity Commission, Access to justice, Report No. 72, 2 vols, September 2014. (volume 1 and volume 2) Volume 2, chapter 34 deals with the family law system.
  • 2014 L Qu et al, Post-separation parenting, property and relationship dynamics after five years (Evaluation of the 2006 Family Law reforms), Australian Institute of Family Studies, December 2014.
  • 2015 Family Law Council, Families with complex needs and the intersection of the family law and child protection systems: Interim report: Terms 1 & 2, June 2015.
  • 2015 R Kaspiew et al, Evaluation of the 2012 family violence amendments: Synthesis report, (Evaluation of the 2012 Family Violence Amendments), Australian Institute of Family Studies, October 2015.
  • 2015 R Kaspiew et al, Responding to family violence: A survey of family law practices and experiences (Evaluation of the 2012 Family Violence Amendments), Australian Institute of Family Studies, October 2015.
  • 2015 R Kaspiew et al, Experiences of separated parents’ study (Evaluation of the 2012 Family Violence Amendments), Australian Institute of Family Studies, October 2015.
  • 2015 R Kaspiew et al, Court outcomes project (Evaluation of the 2012 Family Violence Amendments), Australian Institute of Family Studies, October 2015.
  • 2016 KPMG, Future focus of the family law services: Final report, prepared for the Attorney-General’s Department, January 2016.
  • 2016 Family Law Council, Families with complex needs and the intersection of the family law and child protection systems: Final report: Terms 3, 4 & 5, June 2016.
  • 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs, A better family law system to support and protect those affected by family violence, December 2017.
  • 2018 PricewaterhouseCoopers (Australia), Review of efficiency of the operation of the federal courts: Final report, April 2018.
  • 2018 R Carson et al, Direct cross-examination in family law matters: Incidence and context of direct cross-examination involving self-represented litigants, Australian Institute of Family Studies, June 2018.
  • 2018 R Carson et al, Children and young people in separated families: Family law system experiences and needs, Australian Institute of Family Studies, 2018.
  • 2019 Australian Law Reform Commission, Family law for the future, Report No. 135, March 2019.
  1. Avoid Getting Stuck In A Parenting Dispute
  2. Contravention and Significant Circumstances Change – Reforms to Rice v Asplund.
  3. The Myth Behind FDRP Mediation in Family Law and Its Costs
  4. The Myth of Effective Further Reforms And Self Representation in Family Law

From the ALRC Report 135 – Review of the Family Law System (2019): 
From the ALRC Discussion Paper – Review of the Family Law System (2018):

  1. Australian Law Reform Commission, “Review of the Family Law System,” ALRC Report 135, 2019, p. 34.
  2. Ibid., p. 7.
  3. Australian Law Reform Commission, “Review of the Family Law System,” ALRC Discussion Paper, 2018, p. 12.
  4. Ibid., p. 51.
Avoid Getting Stuck in Parenting Disputes - Past Data & Lessons

In Australia, the Family Law Act of 1975 provides guidelines for disputes related to parenting. If you find yourself in a parenting dispute and want to avoid getting stuck, there are steps you can take. Firstly, it’s important to try and find a resolution with the other parent before going to court. This can be assisted through family dispute resolution services, mediation, or counselling. If a resolution can’t be found, you can apply to the court for parenting orders. 
When applying to the court, you will need to prepare a parenting plan. This plan should outline your parenting arrangements and the responsibilities of each parent. The court will take this plan into consideration when making a final decision. It’s important to note that, subject to the below reforms, the court’s primary consideration is the best interests of the child. 
To avoid getting stuck in a parenting dispute, it’s important to be open to compromise and communication. This can help in finding a resolution that works for both parties and ultimately benefits the child. Consulting a family law 
What does the empirical evidence say? 
The Family Law Act of 1975 is an important piece of legislation that provides guidelines for disputes related to parenting in Australia. According to the Act, the best interest of the child is the primary consideration in any decision relating to parenting matters. This means that the court will consider the child’s safety, well-being, and long-term interests before making any decisions. 
It is always better to try and find a resolution with the other parent before going to court. The family dispute resolution process, also known as mediation, can be helpful in finding a resolution that works for both parties. This can be done through a range of services, including counselling, negotiation, or mediation. The aim is to enable parents to reach an agreement without having to go to court. If the parents do need to go to court it is important to have a parenting plan outlining the roles and responsibilities of each parent. 
It is worth mentioning that most couples separate amicably and can work out parenting and property arrangements without any legal intervention. However, in cases where parents are unable to resolve their issues, they may seek help from the family law system. Families who use the family law system are usually those who have more complex issues, such as a history of family violence, substance abuse, and mental health concerns. 
In addition to the above, it is essential to mention that going to court can be time-consuming, stressful, and expensive. It is always better to try and work things out through negotiation or mediation, as this can lead to a more positive outcome for everyone involved. Overall, the goal is to find a resolution that works for both parents and, most importantly, protects the well-being and interests of the child.

 

Avoid Getting Stuck in Parenting Disputes - Past Data & Lessons

 

What do parents think of the family law system? 
The families who use the family law system are troubled. They are much more likely to have a history of family violence, concerns for their own or their children’s safety as a result of ongoing contact with the other parent, mental ill health, substance abuse, gambling, problematic social media or pornography use. 
Problem areas 
The family law system faces several problem areas, with one of them being the inconsistent and fragmented approach to screening, risk assessment and risk management. Even family law system professionals recognize this issue, as 46% of them disagreed on whether the family law system adequately screens for family violence and child safety issues.

In 2014, around 30% of parents who availed of FDR (Family Dispute Resolution), lawyers and courts reported that they had not been asked about safety and family violence concerns. This is particularly concerning since risk factors are prevalent among such parents, highlighting the need for significant improvements.

Another issue that legal professionals identify is the complexity and confusion surrounding legislation governing parenting arrangements. Since the 2012 amendments, resolving parenting arrangements out of court and even in court has taken longer, which is especially problematic for parents and children who are at risk.

While separation may not be traumatic for most parents and children, it can be more complicated for a small minority. Therefore, there is a clear need to enhance certain areas for better solutions for children who are at risk.

Proposed Changes to 'best interests' Parenting - Children Factors- "FLAB"

The FLAB (Family Law Amendment Bill 2003) refines the list of ‘best interests’ factors in s 60CC with the aim of reducing complexity and repetition of the current hierarchical structure of s 60CC.
The proposed ‘best interests’ factors are: arrangements promoting the safety of the child and the child’s carers, any views expressed by the child, the developmental, psychological, emotional and cultural needs of the child, the capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs, the benefit of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so, anything else that is relevant to the particular circumstances of the child, and for an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture. 
The retention of s 60B in a more limited form, which retains the reference to the Convention, arguably retains a degree of complexity and there is likely to be confusion for some time as to the effect of the amendments to s 60B.
Family violence will no longer be a primary best interests consideration, but is a general consideration along with a new but shorter list of factors in s 60CC. 
Concerns and risks: 
There will be concerns amongst some parts of the community that the removal of an express reference to grandparents will change the law. 
The FLAB removes some of the more practical aspects of s 60CC, which are often not considered by family report writers but which may be relevant in a contested hearing. 
There is a risk that the practicalities of parenting and shared parenting arrangements may be given less weight by the parties, their lawyers and interim decision makers because they will no longer be explicitly stated in the FLA. 
Refining the list of ‘best interests’ factors 
The amendments to ss 60B and 60CC aim to reduce complexity and repetition while enhancing the focus on the needs of individual children. 
The redrafted s 60CC provides the court with the ability to consider the unique circumstances in each parenting matter in a way that places the best interests of a child at the forefront of decision making. 
Presumption of equal shared parental responsibility 
The FLAB repeals the presumption of equal shared parental responsibility under s 61DA and the related equal time and substantial and significant time provisions in the current s 65DAA.
The removal of the presumption of equal shared responsibility will avoid the need for lawyers to reset parties’ expectations from having an “expectation” that orders will be made for equal time, which will also reduce legal costs. 
In situations of family violence and child abuse, it should be easier to obtain sole parental responsibility orders because there will no longer be a presumption of equal shared parental responsibility. 
Consultation on long-term issues 
The proposed s 61CA provides that, subject to court orders, and if it is safe to do so, parents are encouraged to consult each other about major long-term issues and, in doing so, to have regard to the best interests of the child.
A revised s 61DAA sets out that if a parenting order provides for joint decision making by persons in relation to all or specific long-term issues, the order is taken to require each of the persons to consult each other and to make a genuine effort to come to a joint decision. 
Independent Children’s Lawyers: 
The FLAB includes provisions which establish the duties of Independent Children’s Lawyers (ICLs) to seek the views of children by meeting with them.
ICLs are required to act in the best interests of the child and to provide independent representation for the child. 
Appointment of Independent Children’s Lawyers 
The Family Law Amendment Bill 2021 (FLAB) removes the requirement for exceptional circumstances to justify the appointment of an Independent Children’s Lawyer (ICL) in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.
This change will provide greater protection for children in international child abduction cases. 
Restriction on Publication of Family Law Proceedings 
The FLAB repeals section 121 and inserts a new Part XIVB, which prohibits the communication of an account of proceedings under the Family Law Act (FLA) to the public.
The proposed changes clarify the prohibition on communication and ensure that it does not have unintended consequences.
The prohibition will be on ‘communication’ rather than on ‘publication’, and it will be an offence to communicate an account of proceedings under the FLA to the public.
The proposed amendments also contain exceptions to the prohibition on communication. 
Overarching Purpose 
The FLAB inserts an overarching purpose into the FLA, which is to facilitate the just resolution of disputes in a way that ensures the safety of families and children, promotes the best interests of the child, and is according to law, as quickly, inexpensively, and efficiently as possible.
The duties of parties and their lawyers to abide by the overarching purpose are contained in a proposed section 96 to be inserted into the FLA.
This overarching purpose is broader than the current overarching purpose in the Family Court and Federal Circuit Court of Australia Act 2021 (FCFCOA) Act. 
Review of Operation of the FCFCOA Act 
The review of the operation of the FCFCOA Act is to be brought forward by 2 years and will occur between 1 September 2024 and 31 March 2025.
This review will ensure that the FCFCOA Act is consistent with the changes proposed in the FLAB. 
Family Report Writers 
The FLAB proposes new provisions to regulate family report writers and family reports.
Standards and requirements for family report writers will be able to be set out in regulations and will apply regardless of whether they are appointed under the Family Law Regulations 1984 or are single expert witnesses appointed by the parties.
The FLAB also defines the requirements of a ‘family report’. 
Child Support Bill 
The Child Support Bill amends the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).
The amendments extend the application of the Child Support Registrar’s employer withholding collection powers, allow the Registrar to refuse to issue a departure authorisation certificate where a security is offered unless satisfied it is likely that the parent will make suitable arrangements to pay their outstanding liabilities, and introduce a new default income for parents not required to lodge a tax return. 
Conclusion 
The Family Law Amendment Bill 2023 proposes a raft of changes to the family law legislative scheme.
The changes will provide greater protection for children in international child abduction cases, clarify the prohibition on communication of an account of proceedings under the FLA to the public, and improve access to vital information from state and territory family violence and child protection systems during family law proceedings.
However, the changes may also increase uncertainty as to the process to be adopted and the range of possible outcomes when courts are making parenting orders. 
Reducing equal shared parental responsibility orders can protect victims of family violence 
Predicting the future of family law system is difficult, but reducing equal shared parental responsibility orders can help protect victims of family violence.
Abusers often use equal shared parental responsibility orders to maintain control over a victim post-separation. 
When does the FLAB become law? 
The Bill (Family Law Amendment Bill 2003) was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry on 11 May 2023. The committee is scheduled to provide its report by 24 August 2023. The committee is accepting submissions from individuals and organisations as part of its inquiry until 23 June 2023.

Contravention and Significant Circumstances Change - Reform to Rice v Asplund- "FLAB 2023"
(Family Law Amendment Bill 2003)
It makes it clear in what circumstances a court can vary an existing parenting order.
It strengthens compliance with, and enforcement of, parenting orders by redrafting the provisions in Div 13A of Pt VII (compliance with parenting orders) to make them simpler and easier to apply, ensuring registrars can make compensatory time orders, and enhancing the power of the courts to protect parties, and their children, from the harmful effects of litigation through new case management provisions and a new power for courts to restrain the repeated filing of new applications.
It enhances the voices of children in family law proceedings by codifying a requirement for Independent Children’s Lawyers (ICLs) to meet with and seek the views of children, removing the restriction on judicial discretion to appoint ICLs in proceedings under the Hague Convention, and establishing a regulatory making power for Government to make regulations that would provide standards and requirements to be met by family report writers who prepare family reports.
Simplifying enforcement provisions
The proposed Div 13A of the FLA is intended to be simpler and easier to apply than the current provisions which deal with enforcement of parenting orders.
The definition of “reasonable excuse” for contravening a parenting order in s 4(1) will be repealed and replaced with a new definition of “reasonable excuse for contravening a child related order”.
Other changes include giving registrars’ greater power to make parenting orders so that they can make orders that compensate for time lost with the child and new provisions for ordering make up time.
Codifying the rule in Rice & Asplund
The proposed s 65DAAA states that, in considering whether to allow a new application, consideration should be given as to whether there has been a change of circumstances that, in the opinion of the court, is significant and it is safe and in the best interests of the child for the order to be considered.
The rule in Rice & Asplund (1979) FLC ¶90-725 is generally not in the best interests of the child and constant re-litigation of parenting arrangements is not recommended.
Harmful proceedings
The new harmful proceedings provision seeks to implement recommendation 32 of the ALRC report, which referred to Marsden & Winch (2013) as an example of a gap in the courts’ powers to scrutinise the institution of further proceedings.
The power to prevent a party from instituting further proceedings is only exercisable where the court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.
The Myths and Costs Behind FDRP Mediation in Family Law
FDRP mediation or Family Dispute Resolution is considered as an alternative dispute resolution method to settle family law disputes.
However, this myth needs to be debunked due to the costs involved in the process. One of the misconceptions is that FDRP mediation is a cheap and fast way to resolve family law disputes. But in reality, it can be expensive, especially for low-income families, as the fees for the mediator and lawyer can add up.
Moreover, FDRP mediation may not work in all cases, and if unsuccessful, parties may end resorting to litigation, which can further add to the expenses. Another issue is that some mediators may not be trained and experienced enough to handle complex family law disputes, which can also contribute to the high costs. Therefore, FDRP mediation can be a useful tool for resolving family law disputes if the mediator is experienced and both parties are willing to negotiate in good faith. However, it is essential to recognize the costs involved and plan accordingly
Pre-litigation dispute resolution requirements have been increasingly used in Australia and overseas jurisdictions due to widespread dissatisfaction with litigation as a pathway to resolution. 
Benefits and critiques of the s. 60I provisions 
(Adapted from  Shelby Higgs Howarth and Catherine Caruana- Working Paper)
The s. 60I provisions were intended to limit the involvement of courts to the more difficult cases and to promote cooperative parenting after separation.
Critiques of the s. 60I provisions include concerns about the potential for abuse, the impact on vulnerable parties, and the effectiveness of the certification process.
Benefits of the s. 60I provisions include increased access to dispute resolution services, reduced costs and delays, and improved outcomes for families.
Empirical evidence of the impacts of the s. 60I provisions
There is a growing body of evidence in Australia regarding the combined effect of the reforms on families requiring assistance to resolve disputes over the care of children, emerging primarily from government-commissioned evaluations.
However, there has been little empirical research on the certification process at the core of the s. 60I provisions.
Other Interpretations of ‘Genuine Effort’
The requirement for disputants to demonstrate a bona fide attempt to resolve issues prior to initiating court action exists in other areas of Sydney civil law and has been identified as a potential source of guidance in interpreting ‘genuine effort’.
The ‘genuine steps’ requirement in the Civil Dispute Resolution Act 2011 (Cth) adds little to the interpretation of genuine effort.
The ‘good faith’ standard used in contract law and some family law jurisdictions overseas where mediation is mandated is not directly applicable to the FDR context.
Overall, caution should be exercised when using similar concepts to aid in the interpretation of genuine effort.
Barrier to accessing courts:
Some opponents of s. 60I argue that the certifications constitute a barrier to accessing justice that violates their fundamental rights.
Feminist critique
Engaging in mediation presents particular risks for women that are magnified when family violence is present.
Gendered assumptions about women’s behaviour may influence FDRPs’ assessments of ‘genuine effort’, even if unconsciously.
Included in the 2006 reforms were changes that sought to give the issue of family violence greater prominence in the FLA.
Concerns about family violence and gender bias are not unique to the Sydney experience of FDR.
Impact on the family law system
Following the reforms of 2006, there was a swift and marked decline in applications to the family courts for parenting orders.
The use of FDR services increased significantly, with an increase of 57% for existing and expanded FDR services, and 336% for the network of FRCs.
Reduction in applications to family law courts
The reduction in applications to family law courts to settle disputes over children and the corresponding increase in the use of FDR clearly indicates an increase in the use of non-litigious pathways by separating parents.
Fewer parenting disputes are being resolved primarily using legal services and more are achieving resolution primarily via assistance from family relationship services.
Post-FDR trajectories
In high-conflict cases, 63% did not reach agreement compared with 12% of middle- and low-conflict cases.
The international evidence points to the potential for harm for women and victims of violence.
Address feminist critiques of the process
2012 reforms aimed to improve responses to disputes involving children in cases of violence and abuse:
Amendments to the FLA that came into effect in 2012 were intended to support increased disclosure of concerns about family violence and child abuse. 
However, some critics argue that the reforms have not adequately addressed issues of family violence and power imbalances.
Myths & Dangers of Self Representation in Family Law!
The risk of representing yourself in Family Court 
The law can be complex and so are the rules and conventions governing conduct in court. Without a detailed working knowledge of both, it’s very difficult to successfully present the facts of your case in the correct way. 
Typically and unfortunately, as a result of this, self-represented litigants are often disappointed when they do not achieve a desirable result. 
Does representing yourself in Family Court save you money? 
While self-representation can save you money in the short term, it can cost you more in other ways.
While each party is usually required to bear their own costs, the court may make an order for costs against one party in certain circumstances. This may occur if, for example, one party to the proceedings conducted themselves poorly. Such a finding is unusual but possible and we have seen it occur especially when the other side takes advantage of your self-representation. 
A Possible Solution – “Guided Self Help” 
Talk to Goldman Law about paying for the guidance you need. Perhaps this will work for you and it will save you at least 50% in legal fees.
We can assist by drafting key aspects of your case for you, Pay an hourly rate for only what you need.
Read more: Guided Self Help

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