The Family Law Amendment Bill 2023 passed the House of Representatives in May and is currently before the Australian Senate. The Bill was drafted based on the recommendations of the Australian Law Reform Commission’s Final Report No 135 and seeks to overhaul the Family Law Act 1975 by making significant changes to the existing family law processes, particularly in respect of to the making of parenting orders. This page outlines the changes that will be made if this Bill is passed.
Criteria for assessing the best interest of the child
Section 60CC of the Family Law Act 1975 sets out the criteria courts are to use to determine what is in the best interests of a child. Currently, the provision states that the two primary considerations when assessing a child’s best interests are:
- the benefit to the child of having a meaningful relationship with both of its parents; and
- the need to protect the child from physical, psychological, and emotional harm.
Section 60CC also contains 14 additional considerations for the court to take into account. These include the nature of the child’s relationship with each parent, the child’s views, and the likely effect of any changes in circumstances.
With the changes proposed in the Amendment Bill, the government is proposing to limit the additional considerations set out in this provision to the following six considerations:
- Any views expressed by the child;
- What arrangements would promote the safety of the child and each person who has the care of the child;
- The child’s developmental, psychological, emotional, and cultural needs;
- The benefit to the child of being able to have a relationship with both parents and with other people where it is safe to do so;
- The capacity of each person who is proposed to have parental responsibility to provide for those needs;
- Anything else that is relevant to the circumstances of the child.
If the child is Aboriginal or Torres Strait Islander, the court will also be required to consider:
- their right to enjoy their culture; and
- the likely impact of the proposed orders on that right.
Presumption of equal shared parental responsibility to be abolished
Currently, the Family Law Act contains a presumption that parents have equal shared parental responsibility for children when a court is making parenting orders. This is set out in sections 61DA and 61DB of the Act.
This presumption means that the court must take as its starting point that it is in the best interests of the child for the parents to share equally the duties, powers and responsibilities of parenthood, meaning that the parents have shared responsibility for making long-term decisions about the child. This includes matters such as the child’s education, the child’s religion and any major medical interventions that the child has. It does not include the day-to-day care of the child or the everyday decisions that affect the child.
The Amendment Bill proposes removing the presumption of equal shared parental responsibility. If this occurs, each party to a parenting matter will be expected to adduce evidence to support their proposal to have parental responsibility.
Rice v Asplund rule to be incorporated into Act
Under the common law, final parenting orders can be varied only where there has been a significant change in circumstances. This is known as the Rice v Asplund rule.
The Amendment Bill seeks to make the Rice v Asplund rule clear in the Family Law Act, by stating that the court must not reconsider final parenting orders unless:
- it has considered whether there has been a significant change in circumstances; and
- it is satisfied that in all the circumstances it is in the best interests of the child for the order to be reconsidered.
Breaches of parenting orders
The Amendment Bill also seeks to change the provision of the Act that relates to the consequences of non-compliance with parenting orders.
The changes include the introduction of a presumption that if a parent is found to have breached an order, the court must make a costs order against them.
The Bill also proposes to remove the court’s power to order a non-compliant parent to perform community service.
Other proposed changes
The Bill also seeks to make changes to the Act to address issues of delays, court resourcing, and judicial complexities.
Responses to the proposed changes
The proposed amendment has been hailed as one of the most important laws of 2023. The Law Council and other organisations including Women’s Legal Services Australia and National Legal Aid, have voiced their support for the changes.
However, some have criticised the changes for not doing enough to address family violence and for not addressing the phenomenon of legal system abuse. Over half of the parenting matters that are heard involve allegations of family violence and parties commonly report feeling that their allegations are minimised or disbelieved. Legal system abuse occurs when proceedings are initiated or continued in order to disadvantage or harass another party.
The government has stated that the changes will create a simpler and more child-focussed framework and promote the safety and wellbeing of children. The changes are also intended to make the Act less confusing and allow families to put in place parenting arrangements that are in the best interests of their children.
If you require legal advice or representation in any matter, please contact Taylor Rose.
