On 4th February 2023, FamilyProperty attended and exhibited at the first Family Law Section (FLS) of the Law Council of Australia’s Sydney Family Law Intensive event for the year. To recap key learnings or if you missed the Intensive, here are our key takeaways from three key select presentations.
Family Law Amendment Bill
Di Simpson, Chair, Family Law Section, opened the Family Law Intensives series with a discussion about the Family Law Amendment Bill, which seeks to make significant variations to parenting arrangements.
The proposed Bill suggests several changes to the Family Law Act including:
repealing Section 60B regarding the objectives of the FLA,
simplifying parenting arrangements to ensure that the best interests of the child are met
streamlining the best interests factors to six criteria
expanding the definition of "member of the family" to include Aboriginal and Torres Strait Islander concepts of family and kinship
repealing the presumption of equal shared parental responsibility
making it clear when a parenting order can be changed
enforcing parenting orders, changing the role of the Independent Children’s Lawyer
including the overarching purpose of the FCFCOA Act into the FLA
proposing new court powers to protect people from the harmful effects of litigation, and;
modernising and simplifying the language in Section 121 of the FLA.
The aim of these amendments is to prioritise the best interests of children and remove the complexity of the law while ensuring safety during separation.
Latest & Greatest Cases Overview
The Honourable Justice O’Brien, The Honorable Justice Tom Altobelli and Jamie Burreket presented an engaging commentary on the latest and greatest cases in family law in 2021/2022 (53 cases). Some notable cases and key takeaways include:
Fairbairn v Radecki  HCA 18; 96 ALJR 529, emphasized the importance of a spouse's conduct in determining the breakdown of a de facto relationship;
Kozma & Bielen  FedCFamC2F 1003, highlighted the need to focus on the immediate, medium, and long-term impact of proposed orders and to consider ongoing supervision orders;
Charisteas and Charisteas & Ors  FCWA 88, confirmed the test to apply when determining whether a legal practitioner should be prevented from acting for a party;
M v Legal Profession Board of Tasmania  TASFC 9, the court held that a freezing order continued to operate even after proceedings were transferred to a different court, and;
Loncar  FedCFamC1A 14, the Full Court dismissed a wife's appeal against final property orders that were based on a husband's violent behaviour.
Parenting Post Pandemic
This panel discussion focused on the impact of the COVID-19 pandemic on Australian families and parenting matters.
The first impact they discussed was relocation. The COVID-19 pandemic affected relocation cases, particularly those involving international relocation, as judges considered the impact of the pandemic when making decisions. The panel discussed relevant new cases including Lanka v Dev  FamCA 910 where the mother was not allowed to move with the child to India due to the potential effects of COVID-19 on travel.
Additionally, the pandemic affected Hague Convention matters, with parents using it as a defence to resist the return of their children. However, courts have refused this defence. For example, see Secretary, Department of Communities and Justice & Anson  FedCFamC1F 183. In another case, negotiations between parents occurred during the COVID-19 pandemic, but the court found that the child was wrongfully retained, and the child was ordered to be returned to the mother in New Zealand.
The panel then discussed how the pandemic led to more court cases involving disputes between parents over children being immunised. In McGowan & Brennan  FedCFamC2F 1082, a dispute arose over whether a second COVID vaccine dose should be given to a child. The court admitted published material from government health advice as evidence and relied on it to evaluate the risk to the child, even without an expert witness. The child was ultimately given the second dose.
Booth Competition Winner - Congratulations!
We'd also like to extend a huge thank you to FLS for putting together this engaging event - we look forward to attending the 2023 Melbourne Family Law Intensive on 13 May 2023. Registrations for this event are now open.
Disclaimer: This blog post was created by FamilyProperty and is not necessarily a reflection of the view of the Family Law Intensive speakers or the Family Law Section.
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