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Lawyer Talk: Australian Family Law Changes from 2022

February 10, 2023 0 Comments

These are some of the key Australian family law changes from 2022 that will affect practice in 2023 and beyond.

Every year sees a raft of changes across our legal system, with Australian Family Law no exception. Here are some of the more notable changes that will affect family law practice going forward.

Paid family and domestic violence leave

Efforts to see more substantial changes to how domestic violence is managed by the legal system, government and society have been spurred on by a growing number of domestic violence survivors who have had the courage to openly share their stories such as Rosie Batty.

One such visible change that was also in response to the COVID pandemic is the introduction of 10 days of paid domestic violence leave. Up until now, employees were able to access five days of unpaid family and domestic violence leave under the National Employment Scheme (NES).

However, in late October 2022, the Albanese government passed into law the new 10-day allowance under Fair Work, promising to review the legislation within 12 months to ensure it is operating effectively.

From a legal perspective, the key points of the new law are as follow

  • Full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period. It won’t be pro-rated for part-time or casual employees.
  • The full 10-day leave entitlement will be available upfront. It won’t accumulate from year to year if it’s not used.
  • The leave will be available from:
    • 1 February 2023, for employees of non-small business employers (employers with 15 or more employees on 1 February 2023)
    • 1 August 2023, for employees of small business employers (employers with less than 15 employees on 1 February 2023).
  • From 1 February 2023, there are rules about information that must not be included on an employee’s payslip relating to paid family and domestic violence leave.
  • Employees will continue to be entitled to 5 days of unpaid family and domestic violence leave until they can access the new paid entitlement.
  • Evidentiary requirements mean employers will be entitled to ask for evidence but may only use this to satisfy the leave is warranted.
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Amendments to Federal Circuit & Family Court of Australia (Family Law) Rules 2021

Following feedback and consultation with a range of stakeholders, the Federal Circuit and Family Court of Australia brought in a number of amendments to family law rules, notably how a family law matter is run.

Amendment to Filing of Questionnaire with Initiating Applications

To make the filing process more efficient and cost effective, from 28 November 2022, a Parenting Questionnaire or Financial Questionnaire is only required to be filed where a party has not filed an affidavit with their Initiating Application or Response to Initiating Application. 

Additional procedural changes

A range of other procedural changes to case management were made, including:

  • Requiring the Annexure to Proposed Consent Parenting Orders to be attached to an application for interim parenting orders proposed to be made in chambers;
  • Allowing draft consent orders to be signed by a party’s legal representative; and
  • Allowing the court to consider an Application for Review in chambers if the parties consent.

The full list of changes is available here.

Increased delegations to Judicial Registrars

Amendments were also made to the delegations table to help close gaps identified in the powers that the Senior Judicial Registrars or Judicial Registrars can currently exercise to efficiently discharge their respective case management roles, with a limited number of delegated powers that will now only be able to be exercised by a Senior Judicial Registrar or Judicial Registrar.

You can read the summary of this here.

NSW enquiry into child protection

In December 2022, a New South Wales parliamentary inquiry found that the family law system and state’s child protection system were “often misaligned”.

Fifteen recommendations were made to improve the protection of children, with the NSW government response to the report and recommendations due by June 2023.

Key changes are likely to include a review of the protocols between the Family court and state agencies to ensure cases are heard with all appropriate evidence, most notably ensuring children are heard, something those reporting to the inquiry alleged is not always happening.

Please note that this article is only a summary of information and should not be read as legal advice.