Big Topics We’re Talking About At Phillips Family Law: Takeaways from The National Family Law Conference

Big Topic #1: Reflections on Amendments Affecting the Determination of Parenting Arrangements

For anyone reading this who doesn’t work in family law, here’s some context as to why these topics are so significant.

Earlier this year (May 2024) amendments to the Family Law Act relating to parenting law came into effect. This was the first outcome of the Family Law Parliamentary inquiry put forward by the Australian Law Reform Commission.

For the 10 years prior, the law had family lawyers and parents making decisions on the basis that shared parental responsibility and equal shared time  between parents was the presumption, or starting point for all decision making when determining parenting arrangements. 

The legal shift that came with the first amendments coming into effect now has us first focus on the “best interests of the child” – which was always a key consideration but not the very first in the list of considerations.

As Professor Richard Chisholm and Minal Vohra SC discussed in their presentation, there is very little guidance in terms of case law that guides us as practitioners as to how a court will ultimately decide what is in the best interests of children. If certain questions of the media are correct this will lead to a preference for mother/carers having the parental responsibility and less equal time orders. On the other hand, there is a school of thought that the impact of amendments will be minimal. Until we have case law and guidance of the court, we need to be careful without advice. 

Another significant part of the May amendments was the “codification of the rule in Rice v Asplund.  That case had set a precedent that meant that if parents wanted any previously finalised  parenting arrangements (by Court Order) be changed, they had to prove that there had been a significant change in circumstances for the Court to grant that application to proceed. The court’s first indications appear to be that the primary focus on the best interest of the child, may mean that if the best interests justify it, you will not need to establish a significant change in circumstances.

Big Topic #2: Domestic Violence and Property Settlements

With numerous proposed amendments currently before the Senate, the proposed changes could be brought into effect within months, with some of those proposed amendments potentially having a significant impact on how property settlements (division of assets and finances) are to be determined.

As we approach the final months of 2024, there are currently a number of proposed reforms to the Family Law Act. We don’t have a crystal ball to know exactly what will be decided with these, and how, if they are passed, this will play out in reality in the Courts.

The case law currently has provision for damages claims to be factored into the property settlement process, typically in cases of extreme domestic violence (e.g. violence resulting in a disability or significant impairment). One of the proposed amendments will be that the factors a judge considers when looking a party’s entitlement to a property settlement will be to take into account more domestic violence

Some of the proposed changes will see this formalised in a way that is spreading a sense of concern and uncertainty amongst our Family Law colleagues. If domestic violence is to be more formally considered, then there are questions around how to measure damage, whether recency factors into the decision and to what degree? Additionally, there are concerns about how this will impact the length of hearings and on Court resources. There is every possibility that we could see trial times increase considerably and an increase in the demand on Court resources.

An Eye to the Future

Family Law is facing uncertainty in these areas of practice. It is true that, until we see how Judges will apply the law in a range of cases, or how cases of appeal will be handled, we need to be careful with our advice as to how the reforms will impact our clients in their unique cases. 

We will continue to keep a close eye on what is happening and to see how the law will evolve in the coming months and what more may be coming down the line. Watch this space.