The Australian Government has released a draft of the Family Law Amendment Bill 2023 which proposes several significant changes to the Family Law Act 1975 (Cth) (“Act”) regarding parenting matters.
The overarching purpose of the changes is to ensure that the family law system is more accessible, safer and simpler to use and so the Family Court may deliver justice and fairness to ensure the best interests of children are prioritised.
In short, the changes proposed are to make the Family Law legislation relating to children clearer and simpler to interpret and hopefully, will avoid misinterpretation, especially for parents and self-represented litigants.
In broader terms, the significant changes include:
CHANGES TO S60CC SIMPLIFYING THE FACTORS TO DETERMINE WHAT IS IN A “CHILD’S BEST INTERESTS”
Currently, under section 60CC ofthe Act, the Court must consider 2 primary considerations and 13 additional considerations when determining what Orders are in a child’s best interests.
The draft Bill proposes to simplify the process of determining a child’s best interests by removing these primary and additional considerations and instead, replacing them with a list of 6 overarching considerations applying to all children. The approach to determining a child’s best interest is essentially the same, although the section would become simpler to interpret and avoid misinterpretation (especially for parents and self-represented litigants).
Theproposed 6 considerations include:
1. what arrangements would best promote the safety of the child and the child’s carer/s;
2. any views expressed by the child;
3. the developmental, psychological and emotional needs of the child;
4. the capacity of the child’s carer/s to provide for the child’s developmental, psychological and emotional needs;
5. the benefit to the child maintaining a relationship with their parent/s or other significant people in the child’s life, where it is safe to do so; and
6. any other factor relevant to the child’s circumstances.
REMOVING THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Currently, under section 61DA of the Act, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility when making a parenting order. Where this presumption applies, the Court must then consider whether to make an order for the child to spend equal time with the parents, or substantial and significant time with each of the parents. It is therefore up to the party who wishes to depart from this default position to provide evidence as to why the presumption should not apply.
The draft Bill proposes the removal of the presumption of equal shared parental responsibility, and the requirement for the Court to consider specific time arrangements. The Court will instead be required to consider the best interests of children when making Orders about parental responsibility and spending time arrangements. The absence of the presumption means that there is no default position and both parties will be required to show evidence in support of their position. This change will also help address the common misconception that parents have an entitlement to spend equal time with a child.
CODIFYING THE RULE IN RICE V ASPLUND
Currently, parties who wish to change final parenting orders have been required to show that since the original order was made, a significant change in circumstances has occurred. This rule is adopted from the Full Court’s decision in Rice v Asplund (1979) FLC 90-725, however it has never been incorporated into legislation.
The Bill proposes to include a new section which codifies the rule from Rice v Asplund and provides that the Court must not reconsider final parenting orders unless it has:
a. considered whether there has been a significant change in circumstances; and
b. found that it would bein the best interests of the child for the orders to be reconsidered.
Making it clear that a parenting arrangement made by the Court can only be changed if there has been a significant change in circumstances and providing guidance onwhat a “significant change in circumstances” is, will help simplify matters where parties wish to change previously made orders and avoid misinterpretation.
IMPROVING INCLUSIVITY OF ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN
The draft Bill proposes an amendment to the Act’s definition of ‘member of the family’ to be more inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship.
Additionally, a separate consideration factor regarding the best interests of Aboriginal and Torres Strait Islander children in parenting cases is suggested, this aims to ensure a focus on allowing of Aboriginal and Torres Strait Islander children to maintain a connection to their culture.
REQUIRING (IN MOST CASES) INDEPENDANT CHILDREN'S LAWYERS MEET WITH CHILDREN
Under the current system, there is no requirement than an Independent Children’s Lawyer meets with children.
The draft Bill proposes that that in the majority of cases an Independent Children’s Lawyers meet with children before parenting arrangements are made.This allows for the children’s views to be heard and considered by the Court when making parenting arrangements.
PROVIDING THE COURT WITH GREATER POWERS TO PROTECT PARTIES AND CHILDREN FROM HARMFUL EFFECTS OF LITIGATION
The draft Bill proposes to provide the Court with two new powers which attempt to protect parties from the harmful effects of court proceeding as well prevent any further exposure to harm which include:
1. A power to exclude evidence of records which are protected confidences (eg: medical or counselling records); and
2. A power to stop a person from filing any additional family law applications in situations where doing so is likely to be harmful to the other party or a child.
SIMPLIFYING DIVISION 13A (ENFORCEMENT OF PARENTING ORDERS)
Currently, the consequences for failing to comply with orders, and other obligations, that affect children are set out in section 13A of the Act.
The draft Bill proposes to make amendments to this section which aim to simplify and make consequences of not complying with parenting orders clearer and more straightforward.
PUBLICATION AND SHARING OF COURT PROCEEDINGS
Currently,s ection 121 of the Act provides guidance on the restriction on publication of Court proceedings. It provides that a person who publishes or discloses an account of proceedings that identifies a party, person who is relatedto/associated with a party or who is a witness to proceedings commits a punishable offence.
The draft Bill proposes to clarify what types of communication are prohibited and make clear that some forms of communication are allowed, for example, allowing private communications between a party to proceedings and a family member or friend.