Proposed Family Law overhaul – what is actually changing?

On 30 January 2023, the Federal government released the Family Law Amendment Bill 2023 (“the Bill”) – draft legislation proposing to amend the Family Law Act (1975) (“the Act”). Whilst the government has proposed these amendments under the broad umbrella of addressing Court delays and access to support services, here are the four key things that will change under the proposed amendments.

1. Removing the presumption of equal shared parental responsibility

Currently, the Act provides a presumption of shared parental responsibility, meaning that both parents of a child are bestowed all duties, powers, responsibilities and authority to make major long-term decisions that impact the child until that child turns 18, unless the Court determines otherwise. The Bill eradicates this presumption in its entirety, due to recommendations that it was often misunderstood as creating a right to equal time with the child, rather than encouraging shared decision making. Under the proposed amendment, there will be no starting point or assumption that both parents are joint decision makers. As a result, the Court will no longer be required to exercise its jurisdiction to alter parents’ decision-making powers from equal to sole parental responsibility. Instead, decisions that impact the child will be made based on what is considered to be in the best interests of the child.

2. Reducing the number of best interests’ considerations

When determining a child’s care and time arrangements, the paramount consideration is what is in the best interests of the child. To determine what is in the child’s best interests, the Act presently provides a series of two primary and 13 secondary factors that must be considered by the Court.

The Bill intends to reduce the considerations the Court needs to determine the child’s best interests to only six factors, being:

• the safety of the child and their carer;
• any views expressed by the child;
• the developmental, psychological and emotional needs of the child;
• the capacity of the proposed carer to provide for the child’s developmental, psychological and emotional needs;
• the benefit to the child of being able to maintain a relationship with both parents and other people who are significant to the child (where it is safe to do so); and
• any other relevant factors to the particular circumstances of the child.

Simply put, the amendment has removed the primary tier considerations of the child’s safety and ability to maintain a relationship with both parents, and condensed the criteria to equal weight, without any priority considerations. Furthermore, a number of explicit secondary considerations have been removed entirely, including (but not limited to):

• the extent in which a parent has taken, or failed to take, the opportunity to communicate, spend time with, or participate in decisions in relation to the child;
• the effect of any changes in the child’s circumstances and effect of separation;
• the practicality and expense of a child spending time with and communicating with a parent;
• the sex, lifestyle, culture and background of the child; and
• the attitude to the child demonstrated by each of the child’s parents.

These specifically listed considerations will now be included under the category of “any other relevant factors to the particular circumstances of the child”, and no longer need specific consideration by the Court.

3. Extending the role of the Independent Children’s Lawyer

Independent Children’s Lawyers are currently appointed in circumstances where it appears to the Court that the child’s best interests in proceedings ought to be independently represented. Under the proposed Bill, Independent Children’s Lawyers will have to meet with the child when appointed, to ensure their viewpoints are heard. Furthermore, the appointment of Independent Children’s Lawyers is proposed to be extended to matters of international child abduction.

4. Changes to final parenting orders to be legislated

Parenting orders are never considered final, however there are strict restrictions on parents from revisiting them. Presently, the Court relies on the test in the matter of Rice v Asplud (1979) FLC 90-725, whereby the Court determined that final parenting orders can only be reconsidered in matters where a “significant change in circumstances” has occurred. The Bill intends to legislate this requirement within the Act and provide that the Court must be satisfied that it is in the best interests of the child for the final parenting order to be reconsidered, simplifying the judicial process and criteria of revisiting parenting orders.

The Bill is currently in consultation stage until 27 February 2023, and is set to be put before Federal Parliament later this year.

The overall impact of these changes

If the Bill is enacted and the Family Law Act is updated accordingly, the Act will provide more of a child-focused framework, effectively giving children more of a voice.

Get in touch

If you would like any further information on the proposed Family Law amendments or how they could impact you and your family, please contact Christiana or any member of our Family Law Team or call 1800 730 842.