The Family Law Amendment Bill 2023 is currently being debated in Parliament, under review with the Senate of Legal and Constitutional Affairs Legislation Committee.
Currently, section 60CC of the Family Law Act requires the Court to consider an extensive list of factors (2 primary and 14 additional) when deciding what arrangements are in a child’s best interests.
The Bill seeks to make major changes to the system, with the view of simplifying and clarifying the law regarding parenting matters. The major amendments include:
Framework for making parenting orders
The proposed amendments under the Bill seek to simplify and reduce that list to 6 factors, summarised as follows:
- what arrangements best promote the safety of a child and their carers, including safety from family violence, abuse, neglect or other harm;
- any views expressed by a child;
- the developmental, psychological and emotional needs of a child;
- the benefit to a child of being able to maintain relationships with each parent and other significant people in their life (such as extended family), so long as it is safe to do so;
- the capacity of each proposed carer to provide for a child’s developmental, psychological and emotional needs and their ability and willingness to seek assistance; and
- anything else that may be relevant to the particular circumstances of a child.
The proposed list of factors will not be categorised as “primary” or “additional”, as is currently the case and will all be given the same weight.
Determining the best interests for children of Aboriginal and Torres Strait Islander descent
The proposed amendments seek to consider opportunities for a child to connect with and maintain their connection to family, community, culture, country and language as a stand-alone factor when determining what arrangements are in a child’s best interests.
Under the Act, parents are presumed to have equal shared parental responsibility for their children, meaning they are required to jointly make decisions about any major long-term issues their care, welfare and development, unless the presumption can be rebutted. The presumption may be rebutted in circumstances where, for example, there would be a significant risk of harm to a child.
The Bill proposes to repeal that presumption, meaning that the Court will be required to assess the evidence before it and make a finding as to whether or not it is appropriate for parents to have equal shared parental responsibility.
Consideration for equal, substantive and significant time
Under the Act, if the presumption of equal shared parental responsibility is upheld, the Court must consider whether it is in a child’s best interests for their parents to spend equal time with them. If equal time is not appropriate, then the Court must consider whether it is in a child’s best interests for the non-resident parent to spend significant time with a child.
The Bill proposes to repeal this provision, so that there is no mandatory obligation for the Court to consider making an order for equal time if it makes an order for parental responsibility. Ultimately, it will be at the Court’s discretion to determine what arrangements are in a child’s best interests by considering the factors listed above without being required to consider whether equal time is appropriate.
Codifying the rule in Rice v Asplund
The rule in Rice v Asplund provides that, before a parent can re-litigate parenting matters, they must demonstrate to the Court that there has been a significant change in circumstances since the existing parenting orders were made and that it is in a child’s best interests for those orders to be reconsidered. The Bill proposes to classify this long-standing rule into the legislation, which will create a statutory test.
Parenting matters remain complex and before any decision is made as to the care arrangements for children, legal advice should be sought so as to ensure that an appropriate regime is implemented that is in the best interests of a child.