Proposed Amendments to the Family Law Act

There could soon be some fairly significant changes to the Family Law Act in respect to parenting matters. On 30 January 2023, the draft Family Law Amendment Bill 2023 was released for consultation.

The most significant of the proposed changes include:

Clarifying the ‘best interests of the child’ factors

Section 60CC of the Act includes 2 primary factors and 13 additional factors. These are the factors that the Court refers to when considering the ‘best interests of the child’. It is proposed that the factors be reduced to six factors, relevantly:

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. anything other factor relevant to the child’s circumstances. 

Abandoning the presumption of ‘equal shared parental responsibility’

It is proposed that section 61DA of the Family Law Act, which provides for the presumption of ‘equal shared parental responsibility’  be repealed. Currently, the Court applies a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption can of course be rebutted in certain situations. Where the presumption applies, the Court must then consider whether to make an order for the child to spend equal time or substantial and significant time with each of the parents. Under the proposed changes, orders for shared parental responsibility and equal time can still be made but, the decision-making process for parental responsibility will be more focused on the best interests of the child.

Codifying the rule in Rice v Asplund

In 1979, The Full Court of the Family Court held in the matter of Rice & Asplund that unless a party can establish a significant change in circumstances since an earlier parenting order was made, the matter should not be reopened i.e. for a party to seek to vary or set aside final parenting orders, they must establish that there has been a “significant change in circumstances”. The draft Bill seeks to codify this principle by including a section in the Act that would require the Court to consider whether there has been a significant change of circumstances since the final parenting orders were made, and whether it would be in the best interests of the child for the final parenting orders to be reconsidered.

Children’s views

In cases where an Independent Children’s Lawyers (‘ICL’) is appointed to represent the best interests of the children, the Bill proposes that, in most cases, the ICL is required to meet with children to make sure their views are considered when the court makes parenting arrangements. This is currently no requirement for the ICL to meet with the child. 

These are just a few of the proposed changes. Submissions on the Family Law Amendment Bill were being accepted up until 27 February 2023.

How will the changes impact you?

If you already have parenting orders in place, then the new changes will have no impact on your orders. For any new parenting matters commenced in the Federal Circuit and Family Court, the changes will likely take some time to be introduced.

If wish to discuss how these changes will affect your family law matter, please contact Solari and Stock on  8525 2700 or click here to request an appointment with one of our experienced Family law Team, and remember to ask for the first 30 minutes of your consultation for free.

Article by Kirstin Attard
Photo by Patty Brito on Unsplash