The Australian Government has released an exposure draft of the Family Law Amendment Bill 2023, proposing significant changes to the Family Law Act 1975 (Cth) (the Act) in relation to parenting matters.
The draft Bill responds to findings and recommendations for reform arising from an Australian Law Reform Commission review of the family law system in 2019 and a Parliamentary Joint Select Committee inquiry in 2021. These inquiries called attention to challenges facing the family law system including ‘extensive court delays, protracted litigation, inadequate support services and inadequate protections for people at risk of family violence’. The draft Bill seeks to address these shortcomings by making various amendments to the Family Law Act.
Changes proposed in the draft Bill include:
1. Simplifying the considerations for determining a child’s best interest
The draft Bill amends the framework for making parenting orders and replaces the two primary considerations and 13+ additional considerations which the Court must currently have regard to when determining the best interests of a child, with six ‘best interests’ factors.
2. Removing the presumption of equal shared parental responsibility
The draft Bill, if passed, would repeal the presumption of ‘equal shared parental responsibility’ and the requirement for the Court to consider whether to make an order for the child to spend equal time or substantial and significant time with each parent where the parents have equal shared parental responsibility (under sections 61DA and 65DAA of the Act). The proposed amendments aim to focus the decision-making process on the child’s needs and interests and discourage parents from incorrectly assuming that the law gives them a right to equal time with their child.
3. Codifying the rule in Rice v Asplund (1979) FLC 90-725
Since the Full Court’s decision in Rice v Asplund in 1979, parties wishing to change final parenting orders have been required to show that since the original order was made, a significant change in circumstances had occurred. The draft Bill proposes to incorporate this principle into the Act and provide that the Court must not reconsider final parenting orders unless it has:
a. considered whether there has been a significant change in circumstances; and
b. found that it would be in the best interests of the child for the orders to be reconsidered.
4. Improving inclusivity of Aboriginal and Torres Strait Islander children
The draft Bill widens the Family Law Act’s definition of ‘member of the family’ to include Aboriginal and Torres Strait Islander concepts of family and kinship. It maintains the requirement to consider a child’s right to enjoy their Aboriginal and Torres Straight Islander culture when making parenting orders.
5. Requiring (in most cases) Independent Children’s Lawyers to meet with children
This amendment is designed to ensure that children’s views will be heard and considered by the Court.
6. Providing the Court with greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation
The draft Bill, if passed, would give the Court the power to:
a. exclude evidence of records relating to provision of health services which are protected confidences (e.g. medical or counselling records); and
b. prevent a person from filing any additional family law applications in situations where doing so is likely to be harmful to the other party or a child.
7. Simplifying Division 13A of the Family Law Act, which deals with enforcement of parenting orders
This proposed amendment aims to make the consequences of not complying with parenting orders clearer and more straightforward.
8. Clarifying the circumstances in which details of family law proceedings can be shared with others, and the circumstances in which it is an offence to communicate an account of proceedings
Currently, section 121 of the Act prohibits a person from publishing or disseminating to the public an account of proceedings that identifies a party, person who is related to/associated with a party or who is a witness to proceedings. The draft Bill clarifies the types of conduct/communications that are prohibited, and makes it clear that certain communications are acceptable, such as private communications between a party to proceedings and a family member or friend.
The proposed legislation aims to build a family law system which is ‘simpler and safer for separating families and their children’.
This draft Bill is out for public consultation until 27 February 2023, during which time interested stakeholders may submit feedback. For further information on the draft Family Law Amendment Bill 2023 and the stakeholder submission process, click here.
Please do not hesitate to contact Nicholes Family Lawyers if you would like further information about the operation of the Family Law Act and how it applies to your family.