On 19 October 2023, the Commonwealth Parliament passed the Family Law Amendment Bill 2023 (‘the Bill’), which will result in significant changes to the Australian family law landscape. The Bill will primarily amend the Family Law Act 1975, in an attempt to better prioritise the best interests of the child in all parenting decisions made both inside and outside the courtroom.
The Presumption of Equal Shared Parental Responsibility
Significantly, the bill repeals the presumption of equal shared responsibility provisions in the Family Law Act. Under the Family Law Act, there is currently a presumption that both parents will have equal shared parental responsibility, meaning they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues.
For many years, family law experts have expressed significant concern that the presumption of equal shared responsibility is confusing and widely misunderstood. Research has also suggested that misconceptions about the presumption have resulted in children being placed in unsafe or impractical situations. In 2019, the Australian Law Reform Commission recommended that the presumption be amended and replaced with a presumption of ‘joint decision making about major long-term issues’.
Repealing the presumption of equal shared parental responsibility will not prevent the court from making an order for equal shared parental responsibility. Rather, the court will make all decisions regarding parental responsibility based solely on the best interests of the child. Where the presumption has historically resulted in a necessity to evidence that equal shared parental responsibility is not in the best interests of the child, under the new law, the court will need determine what order for parental responsibility would be best for the child in those circumstances.
This amendment is intended to ensure that all decisions, including for parental responsibility, are made on the basis of the child’s best interests, rather than following a presumption which may not best promote the child’s interests in the circumstances.
The Best Interests of the Child – Section 60CC
Under the current legislation, section 60CC of the Family Law Act provides that the two primary considerations for the best interests of the child are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Family law experts have for many expressed concerns that the tension between these considerations has complicated any decisions which may restrict a parent’s contact with the child, even where that parent has perpetrated family violence, despite the protection of children from harm being explicitly prioritised by the Family Law Act. In 2019, the Australian Law Reform commission found that this dual consideration is resulting in a focus on the rights of parents, rather than the best interests of the child, and has the potential to place children at unnecessary risk of harm. The Family Law Act also provides a list of ‘additional’ considerations. The ALRC found that these factors are confusing, increase legal costs and delays, and does not necessarily relevant to a case.
Under the new laws, the best interests of the child considerations have been refined, and the court would be required to consider the following matters:
(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.
Other amendments also include the following:
1. requiring Independent Children’s Lawyers to meet directly with children;
2. greater powers to protect parties and children from harmful effects of protracted and adversarial litigation;
3. a definition of ‘member of the family’ in the Family Law Act that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
4. simplified compliance and enforcement provisions for child-related orders;
5. powers to enable government to regulate family report writers; and
6. ensuring that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.
The amendments are a positive and important step towards better prioritising the best interests of the children, with particular promotion of the protection of children from harm, in Australian family law. Should you have any questions about the Family Law Amendment Bill 2023, or are wondering how the amendments may impact you, reach out to our team of expert family lawyers today.