By Jennifer Zekirovska – Senior Associate
On 30 January 2023, the Federal Government released the draft Family Law Amendment Bill 2023 (Bill). Its introduction is in response to recommendations made in 2019 by the Australian Law Reform Commission and the Parliamentary Joint Select Committee inquiry in 2021.
The inquiries highlighted difficulties in the family law system, including insufficient support services, substantial court delays and prolonged litigation. If the Bill is passed, it will amend several sections of the Family Law Act 1975 (Cth) (Act) relating to parenting matters.
Some of the proposed amendments in the Bill include:
- How to determine the best interests of a child – Simplifying section 60CC of the Act.
Currently, section 60CC has two primary considerations and 14 additional considerations the Court must consider when determining the best interests of a child. It is proposed to reduce this to six considerations, including: the child’s views, the parents’ capacity to provide for the child and the developmental, psychological, and emotional needs of the child. - Removing presumption of equal shared parental responsibility – Repealing sections 61DA and 65DAA of the of the Act.
Equal shared parental responsibility relates to parents’ obligations to consult with one another and make joint decisions about major long-term issues affecting their children.
Currently, the Court must apply a presumption that it is in the best interests of a child for parents to have equal shared parental responsibility, except in certain circumstances. If the Court orders equal shared parental responsibility, the Court must consider whether it is in the child’s best interests to spend equal time, or substantial and significant time, with each parent.
The Bill proposes removing the presumption of equal shared parental responsibility and the requirement to then consider equal time, or substantial and significant time. Without the presumption and a default position, each parent must actively present evidence to support their proposal for how parental responsibility should be shared and the appropriate care arrangements for the children.
It is suggested that this amendment will deal with a common misconception that where parents have equal shared parental responsibility, the child must spend equal time with each parent. - When can final parenting orders be re-opened – Confirming the “rule” in Rice v Asplund (1979) FLC 90-725
In Rice and Asplund, the Court found that there must be a significant change in circumstance to alter final parenting orders. This is commonly referred to as the Rice and Asplund Rule.
It is proposed the Rice and Asplund Rule, and what constitutes a significant change in circumstances, be clearly defined in the Act. This is intended to provide clarity for parents and avoid misinterpretation and uncertainty. - Increasing inclusivity for Aboriginal and Torres Strait Islander children.
It is proposed the definition of ‘member of the family’ under section 4(1AB) of the Act be widened to include relevant Aboriginal or Torres Strait Islander concepts of family and kinship. - Enforcement of parenting order – redrafting Division 13A of the Act
The proposals include:
- Clearly outlining the consequences of non-compliance.
- Including a presumption that if a parent is found to have breached an order, the Court will make a costs order against them.
- Removing the Court’s power to order a non-compliant parent to participate in Community Service.
If you are thinking of separating or have separated from your partner, and you need advice about your obligations under the Act, please contact us on (03) 8672 5222 to arrange an appointment with one of our experienced family lawyers.
