On 30 January 2023, the Attorney General’s Department released the exposure draft for the Family Law Amendment Bill 2023. The media release accompanying the draft says that the bill will “[R]eplace the often-confusing law around parenting arrangements with a simpler child-focused framework that will guide parents who can agree on their own post-separation parenting arrangements.”
Upon review of the bill, there are some significant proposed changes:
- The biggest departure from the current law is the abolition of Section 61DA which will mean there will no longer be a presumption of Equal Shared Parental Responsibility (joint decision-making about long-term issues for a child). The court will still be able to order that parents consult about any long-term decisions for a child.
- Another major change is that Section 65DAA is also to be abolished. Currently, that section provides that if an order is made for Equal Shared Parental Responsibility the Court must consider making an order that the child spends equal time with both parents or if not appropriate, significant and substantial time with both parents.
- The redrafting of Section 60CC and Section 60B which governs how the Court determines what is in a child’s best interests (which is the paramount consideration of the Court when making parenting orders). This is to be reduced in length to six considerations, namely:
a) What arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of:
i) the child; and
ii) each person who has parental responsibility for the child (the carer);
b) Any views expressed by the child;
c) The developmental, psychological and emotional needs of the child;
d) The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring;
e) The benefit to the child of being able to maintain a relationship with both of the child’s parents, and other people who are significant to the child, where it is safe to do so;
f) Anything else that is relevant to the particular circumstances of the child
- The insertion of a separate best interests consideration to apply for Aboriginal and Torres Strait Island children. The Court would be required to consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the opportunity to connect with, and maintain their connection with, their family, community, culture, country and language and the impact a parenting order will have on that right. There is also to be an expansion of the definition of “relative” to account for the different types of families found in Aboriginal and Torres Strait Island families.
- The enshrining in the legislation of the long-held rule in Rice v Asplund which provides that the Court must not vary a final parenting order unless there has been a significant change in circumstances since that order was made and it would be in the best interests of the child for the Court to vary the order.
- The provisions relating to contravention applications (which are applications that seek a party to be punished for breaching a parenting order) found in Division 13A of the Act are to be amended to simplify the law in this area. It is also proposed that there be a presumption that the Court order the person who contravened the orders to pay the applicant’s costs of bringing the application.
- A new requirement for Independent Children’s Lawyers (who are appointed in certain parenting cases to represent children) to meet with the child. Currently, many ICLs do meet the child they represent but now it will be required. Exceptions will be inserted including where the child is under 5 years of age or does not want to meet with the ICL or where there are exceptional circumstances such as meeting with the child may expose the child to a risk of harm. The Court will also have greater discretion to appoint ICL in international child abduction cases (Hague Convention matters).
- A new power of the Court to make a “Harmful Proceedings Order”. Such an order would restrain a party from commencing proceedings without leave/permission of the Court if the Court is satisfied that either the other person or a child would suffer harm such as psychological harm or mental distress. Currently, the Court can only make a vexatious litigant order which is made when someone makes multiple unsuccessful applications to a Court.
- The restriction of the use of medical/counsellor’s records as evidence in cases. This will require parties to seek/leave permission from the Court to present evidence (usually obtained by Subpoena) that was created in the course of providing a health service (e.g. Notes that relate to what someone told their counsellor, psychologist, or medical practitioner). A party will need to address the Court on the relevance, probative value and any likelihood of harm to a person or child that would result if the evidence was admitted.
- The redrafting of Section 121 which currently provides that it is an offence to publish or disseminate an account of family law proceedings to the public. That offence is maintained but the redraft will simplify the section and make clear that private communication with a family member or a friend is not an offence.
These changes have not yet been finalised but illustrate the likely changes the government will make to the Act. Consequently obtaining legal advice will be especially important in the coming months for separated families. If you require assistance with a family law matter, please contact our office on (02) 4944 3322 to make an appointment with one of our family law solicitors.
