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Episode 145 Buy Episode

A New Chapter in Family Law: Navigating Amendments From 2023 Onwards

Law as stated: 31 January 2025 What is this? This episode was published and is accurate as at this date.
Kate Marr, Principal of Marr Family Lawyers, joins David to unpack the recent changes to the Family Law Act 1975 (Cth), including the recently enacted Family Law Amendments Act 2023 and the further amendments still being proposed. Kate shares her thoughts on the practical implications of these changes to shared parental responsibility, the involvement of Individual Children's Lawyers, and matters involving family violence.
Substantive Law Substantive Law
31 January 2025
Kate Marr
Marr Family Lawyers
1 hour = 1 CPD point
How does it work?
What area(s) of law does this episode consider?The Family Law Amendment Act 2023 (Cth) and subsequent amendments.
Why is this topic relevant?The Family Law Amendment Act 2023 (Cth) has introduced sweeping changes to the Family Law Act 1975 (Cth), reshaping the landscape of family law in Australia. These changes, which came into effect on May 6th, 2024, have far-reaching implications for family law practitioners and individuals navigating the family law system. One of the key areas impacted by these amendments is the framework for making parenting orders, maintaining focus on ensuring the best interests of the child are paramount.

These amendments have brought about a significant shift in how family violence and abuse are addressed in family law matters, emphasising the safety and well-being of children and all parties involved. Furthermore, the repeal of the presumption of equal shared parental responsibility has marked a fundamental change in how parenting arrangements are determined, placing greater emphasis on individual circumstances and practical considerations.

What legislation is considered in this episode?Family Law Amendment Act 2023 (Cth)

Family Law Act 1975 (Cth) (Family Law Act)

Crimes Act 1900 (NSW)

What cases are considered in this episode?In the marriage of Rice and Asplund (1979) FLC 90-725

  • In October 1975, a court granted custody of a child born in December 1971 to the father, but nine months later, the mother applied to vary the custody order, which the court granted, awarding custody to her. The issue was whether the second court was justified in altering the initial custody order without being bound by the first court’s findings. The Court held that while earlier decisions and reasoning should be considered, a custody order could be revisited if there were significant changes in circumstances or undisclosed material factors, with the welfare of the child being paramount; this ensures that custody disputes are not unnecessarily re-litigated to the detriment of the child.
What are the main points?
  • The amendments primarily centre on creating parenting orders that prioritise the best interests of children.
  • The Family Law Act has restructured the way the court approaches determining the best interests of the child in parenting orders, with a revised list of factors in section 60CC. This updated section provides a more balanced approach for the court by removing the hierarchy of considerations and allowing judges to consider any other relevant factors when making parenting orders.
  • The considerations involve understanding the child’s views and needs, evaluating the parent’s capacity to care for the child, and examining the child’s relationships with other family members to determine what is in the child’s best interests within the family unit.
  • The biggest change from the amendments is the shift in the concept of parental responsibility in family court orders, with the removal of the presumption of equal shared parental responsibility.
  • Previously, courts would consider granting equal time or significant time based on this presumption, but now the focus is on determining the best interests of the child without a default presumption.
  • The amendments related to family violence demonstrate a shift in language towards a more positive and future-focused approach, emphasising safety and the promotion of wellbeing for children, parents and carers.
  • The old section 60CC used the word “harm,” which has now been replaced with the word “safety.” This change reflects a focus on identifying safety issues and determining the best approach to address them in a specific situation.
  • New provisions have been implemented in the Crimes Act 1900 (NSW) to criminalise various forms of family violence, which can include emotional, psychological, and financial control, along with physical harm to pets.
  • The amendments require Independent Children’s Lawyers to meet with children over five years of age, unless certain exceptions apply, such as if the children have expressed a wish not to meet with the lawyer or have already met with multiple family report writers or health professionals regarding their struggles with litigation.
  • The Family Court process which typically involves multiple applications before reaching a final hearing may now be streamlined with the implementation of a new central practice direction. A provision requiring parties to seek court permission before filing additional applications aims to reduce vexatious litigation and protect victims of family violence.
  • The Rice v Aspland rule has been codified with recent amendments in family law regarding reopening parenting orders. Section 65DAAA outlines the criteria for the court to consider when deciding to entertain changes to final parenting orders based on significant changes in circumstances and the best interests of the child.
  • The court may reject new applications for litigation and reconsideration of orders if it is not in the best interest of the child, even if significant changes in circumstances occur.
What are the practical takeaways?
  • The wording in the new section is simpler and more accessible for parents without legal representation, making it easier to understand and navigate the factors being considered.
  • The removal of the presumption of equal shared parental responsibility has led to variations in wording used by different registrars in documenting joint decision-making orders, causing uncertainty in how to interpret and apply the new requirements.
  • The amendments aim to enhance understanding of family violence across legal professionals as well as ensuring family report writers are adequately trained. This increased comprehension is crucial for effectively addressing the safety concerns arising from past and potential future impacts of family violence on families.
  • If you’re working in family law, stay informed on the evolving case law related to the amendments by attending seminars and conferences and engaging with legal colleagues for interpretation. Additionally, focus on safety issues and future wellbeing of families by collaborating with other professionals such as psychiatrists and therapists to provide holistic support and prevent families from re-entering the legal system.

DT = David Turner; KM = Kate Marr

00:00:00DT:Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host, David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services, and Hearsay the Legal Podcast is how we’re improving the experience of CPD.

Today on Hearsay, we’re talking about the Family Law Amendment Act 2023 (Cth), which came into effect on the 6th of May, 2024, and introduced sweeping changes to the Family Law Act 1975 (Cth) and reshaped the landscape of family law in Australia for the couples and families navigating our family law system. And one of the most impactful changes of the amending Act was to the framework for making parenting orders and to the process by which the court understands the best interests of the child and preserves them as paramount.

Now, these amendments have also brought about a significant shift in how family violence and abuse are addressed in family law matters by the court, emphasising the safety and wellbeing of children, and all other parties involved. Also, the repeal of the presumption of equal shared parental responsibility – something we’ll get into later in the episode – has marked a fundamental change in how parenting arrangements are determined, placing greater emphasis on individual circumstances and practical considerations.

Joining us today to talk through the amendments is Kate Marr, Principal at Marr Family Lawyers and an Accredited Specialist in family law. Kate’s expertise and experience in family law make her the perfect guest to discuss the nuance of these changes and offer some valuable perspectives on their impact in family law practice.

Kate, thank you so much for joining me today on Hearsay.

00:01:49KM:Thank you for having me.
00:01:50DT:Now, before we get into our topic for today – the amending Act, which came into effect a couple of months ago in May, 2024 – tell me a bit about how you ended up in family law practice.
00:01:58KM:To be honest, I didn’t think I would actually study law. It wasn’t until I got my marks from school that I thought I’d give it a go. I always liked those crime drama series on TV. So I started it with the intention “I’ll continue until I fail a subject,” to which I surprised myself and continued on. I was mainly drawn to family law because I initially didn’t have any interest in any other law, but I think also because of the real personal nature and trying to help people, usually in the most difficult stages of their lives. I started at a firm that had family law and that’s what I was drawn to and what I stayed at, and just continued my sort of knowledge base and experience in that area.
00:02:40DT:You know, it’s funny, how you described ending up studying law is exactly how I ended up studying law. I never thought I would get the marks to go to law school, and I think I sort of was told, “well, if you get those marks, it would be a waste not to study law or something like that,” which in hindsight is not very good advice, really. You should pursue what you’re passionate about. But like you, I was fortunate to discover a passion for what I studied along the way. And family law, it’s not an area I’ve practiced in, but it’s an area that has perennial interest for me. It’s such a diverse jurisdiction. The court has very broad powers, sometimes broader than commercial lawyers can really grapple with or understand, and there’s so many competing interests to deal with. So, excited to talk about the topic today. Now we’re talking about the Family Law Amendment Act 2023 (Cth). It’s come into effect recently. As I said at the top of the episode, the main changes have been around parenting orders both in terms of the factors that the court will look at in considering the best interests of the child, and then, I guess, what you’d call the default position so far as parenting arrangements is concerned.
00:03:40KM:The main crux of the changes and what we see in this amendment is really focusing on the making of parenting orders and the best interests of the children. There are some flow on changes to best promote what that amendment is seeking to achieve.
00:03:55DT:Now, as I said at the top of the episode, the amending Act changes how we analyse and determine the best interests of the child. I’ve spoken to some other family lawyers on this topic, and they’ve described it as a simplification, in some senses, of the factors that contribute to what is in the best interest of the child. Is that a fair statement?
00:04:17KM:I would say that in circumstances where initially, or previously, I must say, we looked at sections 60CC of the Family Law Act. In that section, we did have two primary considerations and then we had some additional considerations as well. That was quite a lengthy list. Sometimes when preparing for any type of hearing or getting instructions from our clients, we might find ourselves turning to each subsection of that section to identify what could be relevant in determining the best interest of the children. What we have now with this amended Act is that we have a section where the best interest of the child is still obviously the paramount consideration of the court when considering any parenting orders. But the new list of factors at section 60CC(2) is that it’s really honing in on what those other additional considerations were in the previous section as it was drafted. The new section 60CC really does provide a balanced approach for the court in that there is no hierarchy in regards to those considerations anymore. Also, the judge ultimately can consider any other factor that would impact the best interest of the children when making a parenting order as well. So there is a simplified list. There are less additional considerations that are noted in our legislation now. The court though ultimately has now, I would say, a wide discretion, as it did before, in considering what those factors might be for that particular case.
00:05:49DT:Would you mind telling us what those factors are in the, if you like, streamlined section 60CC?
00:05:55KM:I would say that they focus around six main points in relation to the promotion of safety of the child and the carers of that child. And when I say carers, it’s not necessarily a parent that may have parental responsibility, but it could also include anyone else that’s caring for that particular child. We’re also looking to the views of the child. We’re looking at the needs of the child. We’re looking to the capacity of the parent in respect to – are they able to properly look after the child, and what is in that child’s best interest? We’re also looking from the child’s perspective, in regards to relationships with other family members, including parents. And ultimately anything else that may be relevant for that particular family unit.
00:06:40DT:So it sounds like, yes, section 60CC is simplified, but it’s also broadened the court’s discretion because to summarise: 1) you’ve removed this hierarchy of considerations where the court has to order, the factors that it considers into the hierarchy that was specified by the previous iteration of section 60CC. And 2) it’s also reduced the number of factors that you might have to consider so that you’re not drafting affidavits that come under each heading. But that broad discretion of the court to consider any other factor, including factors that previously appeared in earlier versions of the Act, preserves the court’s ability to, as you said, exercise a wide discretion.
00:07:22KM:I must also note, despite – it has removed, say the primary consideration where the first primary focus would be on the safety of a child. The safety and consideration of family violence and past family violence orders that might be in place is still noted in this new section as well – But you’re right, I think there is a simplified list perhaps for parents that may not have the benefit of a solicitor through this process. The wording of the sections, I would say, is a little bit simpler to understand and yeah, less cumbersome in respect to what factors we’re looking at and considering.
00:08:02DT:And how that filters into evidence, how that filters into submissions and how that filters into judgments. It makes all of that easier to understand for practitioners, for registrars and judges, but as you identified, for clients as well. This is the framework against which clients are advised and against which clients are given the result in their matter, so it makes that much easier to understand for them as well. And I suppose, although the shape of section 60CC has changed a lot, a lot of the common law, the judgments, around how we interpret section 60CC, are likely to be highly influential to some degree binding into the future.
00:08:38KM:Yeah, correct. We would still have the cases that we would be relying on in regards to helping us to advise and otherwise consider when we’re at litigation. It would only be those cases where they’ve relied on particular sections that have now been repealed and are no longer good law. But otherwise, in respect to those cases that still refer to the relevant sections as a part of this amendment, is still good law.
00:09:03DT:Now it’s only been, what – at the time of recording – four months, five months since this legislation’s come in? We don’t really have big picture data on how the amendments have changed practice in the court. But Kate, you’re advising clients on this legislation every day. You’re seeing how this is working at the frontline. Do you have any observations from practice over the last five months in terms of how you’ve noticed either the court dealing with some of these parenting considerations change, or even how you’re advising clients now that these provisions have changed?
00:09:40KM:I would say the biggest, probably, change that I’ve seen is the concept of parental responsibility and the removal of this being the first initial presumption that the court would otherwise apply. In practice, when we were drafting orders, even now, four months on, for instance when considering and otherwise approving parenting orders to be made by consent, we’re seeing different registrars have different wording in regards to how we are to document or order what was an equal shared parental responsibility order in regards to joint decision making, and we’ve now got a shift in regards to that language that we’re to be using.
00:10:24DT:Interesting.
00:10:24KM:So yet to be seen – well, I haven’t come across a case yet that’s otherwise settled what the wording should be – but I am finding in practice that we have had at our firm, say one or two matters where the orders have come across different registrars and different styles in respect to how they interpret this new joint decision making order and rectifying it to their preferred wording before making the orders binding. So in practice, I would say that is one of the biggest, probably, changes is the presumption of equal shared responsibility being repealed. And what that means is – well, parental responsibility for any parent was in itself a bit confusing. Whenever you see the word ‘equal’, parents might think, “well, that would then ordinarily mean equal time.” And it’s not necessarily that that is the case – so that would be one of the biggest significant changes.

TIP: The amending act abolishes the presumption of equal shared parental responsibility found under section 61DA and the related provisions for equal time and substantial and significant time bound in section 65DAA. As Kate just mentioned, this term equal parental responsibility has caused confusion for parents in family law proceedings. As identified by the Australian Law Reform Commission and other inquiries, the section has been frequently misunderstood as granting a right to equal shared time with children as opposed to responsibility. The ALRC suggested changing the term parental responsibility to decision making responsibility, but this recommendation wasn’t fully adopted. Instead, the new terminology is long term decision making responsibility, which removes the emotionally charged and perhaps misleading term parental. The change aimed to facilitate negotiations around sole parental responsibility orders, particularly in cases involving family violence or poor communication between the parties. Family law specialists believe that the protections in section 61DA(2) which say that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to suspect child abuse or family violence, have been inadequate. in preventing equal shared parental responsibility orders in cases of family violence. Eliminating the presumption of equal shared responsibility reduces the need for lawyers to reset and shape the party’s expectations about equal time. In situations involving family violence and child abuse, obtaining sole long term decision making orders should be simpler due to the absence of a presumption under the Act. Also, the removal of the presumption and its exceptions encourages a parent to consider consenting to the other parent having long term decision making authority without having to label themselves as a perpetrator of family violence or child abuse.

Other than the best interest in section 60CC, it’s this whole parental responsibility and the court no longer having to apply that legislative pathway. So originally the court would have to consider, is it in the best interest of the child to have equal shared parental responsibility where both parents – meeting of minds in regards to the best interest – and making that type of long term decision. And then if that applied, then we’re looking at equal time, then we’re looking at substantial significance. So that has all gone.

00:13:30DT:Yeah. Now we just go straight to what arrangement, out of all the available options, is in the best interest of the child – without beginning with the analysis of, alright, is this the right one?
00:13:41KM:Yeah. But I think it’s probably that shift in regards to language about doing the joint decision making as well.
00:13:49DT:That’s interesting. And I guess so recently after a major change to legislation, I guess we don’t see uniformity in different courts and before different judicial members.

TIP:  It used to be the case that section 65DAA followed a cascading or descending step like sort of structure. That meant that if parents have equal shared parental responsibility and equal time is not in the child’s best interest or reasonably practicable, then the court would consider whether significant and substantial time is reasonably practicable. Now it’s possible that by removing the substantial and significant time marker, it could be more challenging for parents and caregivers to reach agreements about care arrangements outside of court. There’s not as clear a starting point for negotiations, advice, and court determinations regarding arrangements that will serve the child’s best interests, at least in the short term. The potential outcomes that might be in the child’s best interests and the possibilities for a negotiation are now probably a bit broader. Again, in the short term until that’s clarified by authority. 

Can you give us an example of some of the different language you’re seeing in the orders that the court is making and how maybe that’s not completely uniform just yet?

00:14:59KM:Yeah. We often are filing consent orders with the court and you don’t know what registrar from what registry might be considering those orders before they’re being made. We are finding that different registrars do have a preference in respect to how they have interpreted the section, for instance, in regards to dealing with parental responsibility, but also using the words of “joint decision making.” For instance, we’ve recently had a matter where the preferred wording from the registrar was that the parties have “joint decision making in relation to their children” – and then naming the children with their date of birth. We’ve had other registrars though, making sure that that particular order also inserts the phrase and what is still defined in the Family Law Act as parental responsibility as well. So with reference to not only is there “joint parental responsibility,” but also inserting the new language of “joint decision making” as well.
00:15:58DT:Got it. So whether to use the earlier language of “joint responsibility” or the new language of “joint decision making”, or both?
00:16:05KM:Correct.
00:16:06DT:There’s still a bit of disagreement from the bench about the right way to do that?
00:16:09KM:Yeah, that’s right.
00:16:10DT:Well, let’s talk about the abolition of the presumption of equal shared parental responsibility. Because I guess, unlike the change to section 60CC, which is an important change but it’s fundamentally to simplify a piece of legislation where the policy outcome is otherwise the same. It’s still, the paramount interest is the best interest of the child, that’s not changed. The way we express that and the way we get to it has been streamlined, but the policy hasn’t changed. The presumption of equal shared parental responsibility changing is like a marked policy direction change, right? Where we’re doing away with this assumption, to, I suppose, free up our Family Courts to consider every option that’s in the best interest of the child. Let’s start at the earliest place where these changes are likely to impact couples and families, which is, they come to see you for an initial consultation or an early consultation and they’re getting advice on how parenting plans are arrived at and how orders are made. How’s this change changing your advice?
00:17:14KM:In respect to advising clients, obviously we’re adapting our advice to their relevant circumstances and what the issues are for their particular family. We do, however, in providing that advice, compared to what the court may do previously prior to this amendment coming in place, the first starting point would usually be considering whether or not this is a family, that the court would usually order an equal shared parental responsibility order. And what I mean by that is, where there is that joint consultation in relation to making those big decisions for children usually centering around education, medical, if they were to live elsewhere for instance, or religion. What we see now in the courts and with this amendment is that there is no longer a presumption that equal shared parental responsibility applies. The legislative pathway that previously was in place is that if indeed this was a family where an order was made for that equal shared parental responsibility, the court would then have to consider whether or not it’s in the best interest of the child and otherwise practicable for the child to have equal time with each parent. If that was deemed a “no”, then we’d be looking at significant and substantial time. So that would be time during, for instance, the school term, school holidays, special occasions and the like. What we’re now seeing is that with this presumption of equal shared parental responsibility now removed, is that, well, practically, we may have less appeals before the court because it could be a strict legal application of the law where parties might be otherwise trying to overturn a decision. What we’ve got now is that there is no presumption, so whilst the court can still make these decision making, parental responsibility orders for a family, they don’t have to then consider the equal time or substantial and significant time flowing on from that.
00:19:15DT:There’s not this mechanical stepping through each of these steps, which as you say, could give rise to appeals where the form of the decision is in error, although the substance of it may not be.
00:19:26KM:Yeah. We’re now looking at probably parental responsibility on a case by case basis. and practically it’s yet to be seen, but whether or not we will still see this presumption of equal, versus now that there isn’t a presumption to rebut, is the court going to be perhaps more inclined to make sole parental responsibility orders perhaps for a primary carer of a child?
00:19:49DT:Interesting.
00:19:50KM:So, in regards to all this joint decision making as well, the new section about joint decision making now provides more guidance, I would say, for parents. It actually spells out what is considered necessary in respect to doing joint decision making. The Act now provides guidance to parents in how they should be consulting in regards to these major long term decisions. There’s a new section 61CA that provides that unless there are court orders stating otherwise, and provided it is also safe to do so, parents are encouraged to consult with each other about those major long term issues regarding a child and making sure that the best interest of the child is still obviously the paramount consideration. It is a signal, I would say, to the parents as to what these major decisions are about, but also section 61DAA sets out the effect of that order and provides, I would say, guidance in regards to there must be somewhat a meeting of minds, a consultation with each other, and making a genuine effort in trying to reach a decision. This section, though, doesn’t require those parents or those persons to actually come to a joint decision. So it’s yet to be seen when one parent may well consult and may well make a genuine effort, but in those circumstances where there is no joint decision and then they go ahead and make the decision themselves, in how the court might deal with that.
00:21:20DT:I imagine that guidance, it was probably something that you and other responsible family lawyers had been giving as guidance to your clients for years. Do you think it helps having that in the legislation now too?
00:21:33KM:I think it is probably a double edged sword. It is good that it is there black and white and we can refer, potentially self-represented litigants, to particular sections as to meaning, as to what it is, because we do have the difficulty that we can’t cross the line and advise a self-represented litigant. So directing them to a certain section where it is spelled out may well assist. However, it is quite clear as well that it doesn’t really go that one step further as to what may happen if someone just goes and makes their own decision.
00:22:08DT:Yeah. I guess, something that we’re going to have to wait and see.
00:22:12KM:That’s right.

TIP: Kate just mentioned the benefit of having these considerations explicit in the legislation, especially when self represented litigants might be referring to it. If you’re interested in learning more about self-represented litigants  especially in the family law context, check out our episode with Chauntelle Ingenito, that’s episode 121. It’s called ‘Balancing the Scales: Best Practices When Dealing With Self-Represented Litigants’.  It’s an excellent episode to listen to. It dives into the common challenges and experiences of self reps, the legal rules on how much assistance that they can be provided with by courts and by opposing counsel, and strategies for lawyers to improve how they deal with self represented litigants.

00:22:51DT:Now we’ve hinted at this a couple of times in the episode already, just recently you said that that section about how parents should consult with one another about major life decisions is subject to it being safe to do so, but an important objective and one of the key objectives of this amending legislation, was to better deal with family violence in family law matters. What are the implications of the new legislation for parents and families where there is family violence and that family violence has gotten in the way or prevented a more cooperative parenting arrangement from being successful?
00:23:27KM:In relation to family violence and the amendments, I would say that there seems to be a bit of a shift in the wording of the amendments where previously we were looking at what the unacceptable risk is, or if there was an unacceptable risk. Now we’re looking, and I would say perhaps the language is a bit more positive or future focused in regards to an emphasis on safety, so perhaps better testing what the shape of the orders look like or what the scaffolding needs to be in respect to promoting the safety of children and also parents and or carers in relation to the children.
00:24:05DT:Yeah. I mean, that language of unacceptable risk invites you to think about what an acceptable risk of family violence is, which, you know, is kind of ill at ease with the other provisions of the legislation/ Focusing on what is safe I think makes a lot of sense to me and to practitioners as well.
00:24:20KM:Yeah. I understand the old section 60CC, I think actually had the word ‘harm’ written in it, but now the word to be used is ‘safety’ instead. So we’re always looking at, what are the safety issues in regards to a particular matter and how do we best deal with those?
00:24:37DT:Now, on the one hand, these new provisions encourage or guide parents to make major decisions together. As you said, you know, it remains to be seen what’s going to happen if one parent makes a decision unilaterally and that offends that provision, what is the court going to do in response to that? But I guess an important point that we should acknowledge is that that provision intentionally doesn’t require parents to make those decisions jointly in every case. It is subject to the safety of the parties in making that decision together, and section 60CC still puts safety right up there as a paramount consideration in determining the best interests of the child. So, this focus on safety at every level of the amending legislation, is that reinforcing or strengthening the protection of parents and children who’ve experienced family violence when they’re going through the Family Court?
00:25:31KM:It is a very good observation. I think it is yet to be truly tested in respect to how the court’s going to apply these new amendments and the new section 60CC. In some way there is, I would say, a significant step forward in regards to victims of domestic family violence. Particularly those that still may be experiencing violence after separation and throughout the litigation as well. There is now a codification in respect to considering the impacts of what the parenting arrangements might look like. Section 60CC also now specifically says that we need to be considering not only the safety of the child, but also the safety of the parents and otherwise carers, for instance, that might otherwise be facilitating changeovers as well. So the fact that that now is written in the legislation, I would say is a step forward in respect to the legislation. Also not specifically requiring the parties coming to a joint decision may or may not assist in the extension of that violence. Depending on the behaviour of, we’re dealing with a strong personality on the other side, or otherwise another parent has struggled in the past in trying to have their voice heard in making those decisions, this may well empower them to be able to parent the children, particularly if they are the primary carer of the children as well. So, to basically be able to move on with their lives and not necessarily have to engage with, potentially, a perpetrator of family violence in making these decisions for their children.
00:27:08DT:Yeah, absolutely. And I suppose we should also think about this legislation as being a legislative response or a policy response that is part of a whole, in the sense that there has also been some procedural change in the Family Court preceding this amendment last year with the introduction of the Evatt List, DOORS Triage, the Lighthouse Project, as it ran in a few registries of the Family Court, that is designed to identify these family violence risks so that these kinds of provisions can be enlivened. There’s a step to have the legislative framework to address family violence and there’s a step to identify the risk of it in particular matters. And the amending legislation is that legislative framework, but you know, we should understand it in the context of all the practical work that the Family Court is doing to identify those risks so that judicial registrars and judges can make the right orders in the right cases.
00:28:01KM:Yeah, and I think even with these amendments as well, there seems to be a lot more of an emphasis or a deeper understanding as to what family violence includes. Not only across the bench, but also with solicitors and also perhaps reaching out to psychiatrists, psychologists, the family report writers also. They would obviously have all that training already, but in relation to making sure that when we’re looking at the future focus in regards to dealing with the safety, we’re really relying on this better understanding of family violence and the impacts that it has had on the family already and how it may continue to impact the family moving forward as well.
00:28:39DT:Yeah. I suppose you’re talking about there, when we talk about family violence, of course, we’re not just talking about physical violence. I think there’s some amendments around coercive control. Is that right?
00:28:52KM:Yeah, that’s right. There’s new provisions in place in regards to making it a criminal offence as well.

TIP: Kate just mentioned the new provisions criminalising coercive control and family violence. On the 1st of July 2024, the Crimes Act 1900 (NSW) was amended to create a new offence targeting abusive behaviour towards current or former intimate partners, alongside changes to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to introduce a new definition of domestic abuse. This legislation comes from the Crimes Legislation Amendment (Coercive Control) Bill 2022, NSW Bill obviously, which was introduced in October 2022 and commenced in February 2024. It aims to address coercive control as a criminal offence with a maximum penalty of seven years imprisonment. It won’t apply retrospectively, so it won’t cover any offenses committed before its enactment and enforcement, but to secure a conviction, the prosecutors must demonstrate that the offender repeatedly engaged in abusive conduct with the intent to coerce or control the victim, and that a reasonable person would conclude the behaviour caused a fear of violence or severely impacted the victim’s ability to carry out their daily activities. 

New South Wales is the first Australian state to criminalise coercive control. The legislation reflects the experiences of victim survivors of domestic violence and aims to prevent further abuse and domestic homicides. To support the effective implementation of the law, the government has committed 5.6 million to police training, public awareness campaigns and educational resources about it. 

We did a two part series on these changes when they first came out. If you’re interested, check out episode 70 with Andrew Tiedt called ‘Prevalent and Insidious: the Sin of Coercive Control’ and episode 79 with Hayder Shkara called ‘Tracking, Surveillance, Financial Control: Understanding Coercive Control in Intimate Relationships’.  Those two episodes cover the coercive control phenomenon from both the criminal law and family law perspectives, respectively.

So, when we’re looking at family violence, of course, it’s not just the physical. It can be emotional, psychological, it can be the harming of a pet, or damaging property, could also be financial control as well. So, it is quite wide-scope in respect to what family violence may include, but we also need to consider when we’re looking at these safety issues, not only the family violence, but also neglect and abuse as well.

00:31:12DT:You mentioned pets. I remember seeing some pretty shocking statistics about the number of people who experienced family violence who feel unable to leave that situation because of their fears for the consequences of leaving for their pets.

TIP: One of the interesting provisions included in the new Family Law Act Amendment Bill 2024, it’s a legislative first, is the express inclusion of pets, and how they should be treated in separation and divorce proceedings. In the few historical instances in which courts have been asked to make a determination about, I’m not sure what term to use here, ownership, custody, responsibility for, pets after a relationship breakdown, courts have typically focused on factors like who purchased them, who covered their expenses, and provided daily care when determining ownership. But the new amendments propose to recognise pets as companion animals and provide that the court must provide a list of factors in determining custody of the pet, such as incidents of family violence, any history of animal cruelty or abuse, and the relationship of a party or child with the pet. Family violence is a consideration, of course, with courts taking into account any history of cruelty or threats towards pets as a form of coercion or control. The bill specifically prohibits joint custody of pets, requiring courts to assign ownership of the pet to only one party in the aim of preventing future and ongoing conflicts between the parties – which sounds pretty sensible to me. 

This Bill has actually passed both houses since we recorded this episode. The majority of the changes will come into effect at the end of May 2025. The other changes included in the Family Law Act Amendment Bill 2024 aim to enhance case management in family law proceedings, codify disclosure obligations in family law proceedings, reform property adjustment processes, and regulate the children’s contact services. 

Specific reforms include:

  • Codifying legal principles for resolving property disputes.
  • Emphasising fair outcomes by considering contributions, current and future circumstances, and liabilities.
  • Also, addressing material wastage, liabilities incurred, care needs for children under 18, and the impact of family violence, which, as you can probably tell, is a bit of a theme. 
  • Obligations related to financial disclosure are elevated from court rules to legislative requirements, with additional duties placed on lawyers and family dispute resolution practitioners under the new legislation. 
  • Expanding the definition of family law violence to include economic abuse, dowry abuse, and financial control. 
  • And introducing safeguards to protect confidential professional communications in sensitive cases. 
  • And updating arbitration processes, clarifying family law provisions across multiple different acts. 
  • And mandating a statutory review three years after the implementation of the new act to assess the changes and their impact.

Now, I understand that the role of Independent Children’s Lawyers (ICLs) has also changed under the legislation. Is that a consequence of the changes to section 60CC and the removal of the assumption of shared parental responsibility, or are there specific changes to the role of ICLs as well?

00:33:52KM:The new amendment now creates an expectation for the Independent Children’s Lawyer to meet with children if they are over five years of age, unless an exception applies. Some of those exceptions would include if the children have expressed a wish not to meet with the Independent Children’s Lawyer, or for instance, if they’ve already met with several family report writers, or if they’re already seeing a number of health professionals in respect to their health or the struggles in dealing with the litigation as well. So whilst a lot of Independent Children’s Lawyers were meeting with children prior to this amendment, there is now this expectation that is to take place unless an exception applies.
00:34:38DT:I suppose the upshot of that is, the views or preferences of the child will play a greater role in the making of parenting orders and parenting arrangements in the future.
00:34:50KM:That’s right. The views of a child is actually specifically stated in the new Section 60CC when considering the best interests of the child. It is, I would say, another avenue other than, for instance, if reports are being prepared and the children are meeting with those family report writers, the Independent Children’s Lawyer may well have heard what that wish or the view of the child is. There is, however, a specific section in the Family Law Act though, to ensure that the child’s view is not compulsory, nor should it be pushed. So whilst they may hear the view of the child and their role in the proceeding is obviously to promote the best interests of that particular child or children, the views may or may not necessarily still come through the Independent Children’s Lawyer.
00:35:39DT:Yeah, absolutely. And I guess, as it was before the amendment as well, the weight to be afforded to those views changes substantially with the age of the child.
00:35:47KM:Yeah, absolutely. And the circumstances in which that view may have been presented as well.
00:35:53DT:Yeah, well, that’s right.
00:35:54KM:Was it Dad promising a new big flash TV and a PlayStation, or Mum promising a holiday? Whatever the circumstances may well be as well.
00:36:03DT:Yeah, absolutely. Now, an interesting amendment – and I’m interested in this because we’ve recently talked on the show about self-represented litigants, how to deal with self-represented litigants as a practitioner representing a client, and the awareness that there is a very large number of self-represented litigants in the Family Court – the amendments have introduced what’s called a harmful proceedings order to attempt to curb vexatious litigation. Now, vexatious litigation is, of course, not always brought by self-represented litigants, but in the Venn diagram, there’s a fair degree of overlap, let’s say. In your experience, Kate, how prominent or how pervasive was vexatious litigation in family law proceedings? These sorts of meritless claims that were brought to scandalise or to make things difficult for the parties – how common was that and how effective do you think these harmful proceedings orders will be in mitigating it?
00:36:55KM:I would say whilst in family law, there may well be a number of applications that we’re dealing with. I would also say that in my 16 years or so of practice in family law, I haven’t really had a particular matter where there are, call it five interim hearings, before we actually get to a final hearing. Perhaps with the new central practice direction also in place in the management of the family law files, it may well be the case that because the view is to streamline and speed up the process in getting the families to a final hearing as well. The ideal is the families are in this system a lot less. So perhaps the opportunity to file additional, call it, interim applications may reduce. We may, as practitioners, forever roll our eyes at the litigious nature of, maybe a self-represented litigant or otherwise – they could actually be still represented by a solicitor that puts on what we might deem as a baseless application. Ultimately though, if the application is filed, the court does need to deal with it. If it’s open, we are saying with this amendment that there is specifically section 102QAC, or “quack”, in relation to trying to reduce this vexatious litigant scenario. Where, if a party to the proceeding if there is a pattern of these additional applications being filed, this provision may well require that personal party to seek leave from the court prior to filing that additional application. So it’s yet to be seen as to how many applications still might trickle through, that the other party does still need to incur the costs of, and have the stress of an additional application. But particularly in circumstances where there has been family violence, where sometimes we do see that parties are using the system to otherwise extend this family violence after separation, this provision may well mitigate and protect those victims of family violence. And it’s yet to be seen, but if this harmful litigant needs to seek permission from the court before filing this application, that victim of family violence may not be even aware of those additional applications. So that may well promote also, not only their safety, but the best interests of the children, because that victim of family violence is not otherwise concerned or stressed or worried in regards to those additional applications because they’re none the wiser and they can continue parenting.
00:39:46DT:Yeah, that’s a great point.

TIP: We’ve been talking about the Family Law Amendment Act 2023 a lot today, but it was passed at the same time as another amending act called the Family Law Amendment (Information Sharing) Act 2023. This act establishes an improved framework for the exchange of information about family violence, child abuse and neglect risks between family law courts and information sharing agencies. Specifically, this reform:

  • Introduces two new information sharing orders courts can make that allow courts to swiftly obtain information from police, child protection, and firearms agencies regarding family violence, child abuse, and neglect that might endanger children. 
  • It also ensures that these orders can be utilised at any stage of the proceedings, guaranteeing that the information is accurate and current throughout the family law process. 
  • It defines exclusions from that information sharing regime and sets out some safeguards for family law courts and agencies to consider when sharing and using information shared under those orders and
  • introduces a restriction on issuing subpoenas without court approval to minimise redundancy and information requests presented to the court. 

As a result of these changes, courts will have access to improved information in all family law matters. The reforms aim to provide courts with a comprehensive understanding of family safety risks, prioritising the safety of children and families, especially in cases involving potential child abuse, neglect or family violence. These changes took effect along with the other amending legislation on the 6th of May 2024. and apply to all child related proceedings, even those where a final hearing has already begun in those proceedings. The government is collaborating with stakeholders to ensure the new provisions are implemented smoothly and with minimal disruption while also providing information about the reforms to those in the family law system. So there’s probably other reading you can do on the Information Sharing Act apart from this.

Family law, as our listeners would probably know, is not my area, but in my time at the bar, I did a little, tiny bit of family law. And one matter I did do, was a Rice v Asplund-type case. From the outset, it was clear that it had been brought and it was meritless. It had been brought by a self-represented litigant. It was plain from the supporting material that it was not only meritless, but fueled by a delusion that that parent had about the care of the children, and the outcome of that matter was inevitable because of the rule in Rice v Asplund. But my client, one of the parents, had to be present at court for a day, and stress about the fact that he was present at court for the day, and stress about the outcome of the proceeding, and of course pay me and my instructing solicitor. So, the fact that there might be a separate hearing to seek leave to bring this vexatious proceeding. Yes, that is taking up the court’s time, but importantly, it’s not visiting the stress of that on the other parties to the proceeding, or the other carers, or the other parents in the family, because they don’t need to be involved in that initial step of granting leave.

00:42:34KM:And on the point of Rice v Asplund, a lot of us family lawyers obviously know what that case means. It was a case that was determined back in 1979, but with this amendment as well, we now have a codification of what we refer to as the Rice v Asplund Rule. And for the benefit of those that don’t often practice in family law, it is in relation to whether or not the court should – call it, entertain – a change in respect to any sort of final parenting orders that might be made. Because when final parenting orders are made, they’re made with a view until the children are adults. And this Rice v Asplund Rule, I suppose, perhaps for the benefit of those self represented litigants, we now have a particular section in relation to reopening parenting orders and what needs to be considered by the court. So in reference to section 65DAAA – all these amendments with all these letters behind the numbers, because we don’t want to insert any new numbers, we’re just going to insert some new extra letters – it’s also yet to be seen I would say, in regards to how the court applies this particular section. The subsection 65DAAA(1)(a) is that the court is to consider if there has been a significant change in circumstances since the final parenting order is being made. And subsection 65DAAA(1)(b) is in relation to if the court is satisfied in all the circumstances, considering if there is actually a significant change in circumstances, if it’s in the best interest of the child for that final parenting order to be reconsidered, it can still reconsider making new parenting orders. So it’s a little bit of, “watch this space,” as well in respect to that section.
00:44:20DT:Yeah, absolutely. It sounds like it is, in large part, restating the rule in Rice v Asplund, but not exactly. And it’s still preserving that broad discretion that we see as a theme throughout the new legislation, is reserving a broad discretion to the court to make orders in the best interest of the child. And so it’ll be interesting to see.
00:44:38KM:Yeah. Because in the end, there may well be a significant change in circumstance, but unless it’s in the best interest of that child to go back through litigation and reconsider new orders, perhaps the court’s just going to say “no” to these new applications.
00:44:51DT:Absolutely. Because it’s not in anyone’s interest, least of all a child’s, to be endlessly embroiled in litigation over parenting orders, is it? Well, Kate, we’re nearly out of time, but before you go, we’ve been talking about these amendments and how you and other practitioners like you are starting to deal with them in practice. If you had any practical takeaways for our listeners who might be advising clients in the family law practice area, who might not yet have had the opportunity to advise, post these changes that took effect in May. What practical tips do you have for some listeners who practice in this area, but maybe haven’t had a chance to adapt the way they practice to the new amendments yet?
00:45:33KM:As stated, we’re yet to probably see the real impact that these amendments are going to have on decisions. So with that in mind, I think we do need to make sure that we’re reading the evolving case law in respect to the application of these amendments. I would say attend seminars if you have opportunities. There’s a lot of podcasts. There are a lot of seminars, conferences that are being held and this is obviously a hot topic at the moment. So make sure you put your hand up or hit accept and put yourself out there and just go there and listen. I would also say lean on other colleagues. I practice in Wollongong. We have a pretty strong fraternity of legal practitioners there, and listen, there is no harm in picking up the phone. Of course, not if they’re the opposing side. But in trying to also work together in respect to interpretation of these sections, I would also be saying, these safety issues and where it seems in the legislation that we need to be looking at the future focus and the safety of these families, engage in other services, reach out to the parties, maybe particular psychiatrists, psychologists, therapists obviously with the consent of the clients and the willingness of those treating health professionals. But also, find out how we can best help this family. There’s a lot of services out there, a lot of courses available that if we have that knowledge and we can refer our clients to either get better, help communicate or otherwise deal with the trauma that they’ve experienced. I think if we’re looking at these family law matters, more holistically we’re going to get better outcomes and hopefully not have the circumstances of these families re-entering the family law court system.
00:47:32DT:It’s a great point. I guess, a common theme of the amendments we’ve been talking about today is that they’ve really broadened the court’s discretion, have allowed for a more holistic consideration of what’s in the best interest of the child and the kinds of options that are available for delivering that in parenting orders. And that means that there is a greater opportunity to loop in professionals of other disciplines to bring more information to the court’s attention, that might help to find the right option and make the right orders, because there’s no assumptions about what those are now. And I think also, it is a great tip to reach out to professionals in your area to help navigate uncertain territory. You mentioned you practise in the Wollongong area – a suburban and regional law society is a great place to find other professionals to talk about this sort of topic. I don’t think there’s anything wrong with reaching out to the other side to navigate some of this stuff.
00:48:22KM:Depending on the matter and the practitioner, I would say.
00:48:25DT:Yeah, it really depends on the practitioner, doesn’t it? But if you’ve got a good rapport and if you’re both reasonable practitioners, collegiate people, and you’re trying to work out how best to draft consent orders that comply with the new language of the section, that’s a great chance to say,
“well, look, we’re both trying to work this out together. Yeah. Let’s consult on it.” Sometimes easier said than done, isn’t it?
00:48:46KM:Yeah. That’s right.
00:48:48DT:Kate Marr. Thank you so much for joining me today on Hearsay.
00:48:50KM:Thank you very much.
00:49:01DT:As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Kate Marr, for coming on the show.  Now, if you’re a family lawyer and you want to hear more family law updates, you should really check out our episode with Family Court Senior Judicial Registrars Brett McGrath and Sharni Jenkinson. That one’s a bit unique. It was recorded in front of a live audience at the CLC NSW quarterly conference last year – still a great listen. That one is episode 74 and is titled ‘The Risk Business: Triaging Risk in the Amalgamated Federal Circuit and Family Court of Australia’.

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