On 19 October 2023, the Australian Parliament passed The Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023.
The Family Law Amendment Bill 2023 makes several amendments to the current Family Law Act 1975 to ensure that the best interests of children are at the centre of all parenting decisions made.
One significant amendment made by the Family Law Amendment Bill 2023 is the repeal of the presumption of equal shared parental responsibility.
‘Parental Responsibility’ is the responsibility that parents have to make long term decisions regarding the welfare and development of a child, particularly regarding their education, medical decisions, their name, their religious or cultural upbringing or where they will live.
Under the current Family Law Act 1973 (prior to the amendments) there was a presumption that parents should have equal shared parental responsibility for making such decisions unless there were reasonable grounds for that presumption not to apply. Additionally, where an Order was made for parents to continue to have equal shared parental responsibility, the Court also had to consider making an Order for the child to spend equal time with both parents, if it was in the child’s best interests to do so.
The amendments brought by the Family Law Amendment Bill 2023 now provide that parental responsibility may provide for major long-term decisions regarding a child to be made jointly or solely by one parent. The Family Law Amendment Bill 2023 also provides the potential for one parent to have the sole decision-making responsibility in relation to particular matters only, such as medical decisions, and the remainder of decisions to be made jointly.
The allocation of parental responsibility is now based on what is in the best interests of the child, which is determined by section 60CC of the Family Law Act 1975.
Currently, section 60CC of the Family Law Act 1975 includes ‘best interest factors’ that are broken up into two primary considerations and an additional 13 considerations.
The new section 60CC intends to remove the two primary considerations and 13 additional considerations and replace them with 6 general considerations and an addition 2 considerations in circumstances where the child is Aboriginal or Torres Strait Islander.
This new 6 general considerations are:
1. What arrangements would best promote the safety of the child and each person who has care of the child;
2. Any views expressed by the child;
3. The developmental, psychological, emotional and cultural needs of the child;
4. 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;
5. The benefit to the child of being able to have a relationship with both parents, and other significant people, if it is safe to do so; and
6. Any other factor that is relevant to the child.
The new section 60CC of the Family Law Act 1975 provides the Court with a wider discretion to consider the particular facts of each case to ensure that the decision made is in the best interests of the child/children involved.
The Family Law Amendment Bill 2023 also includes changes to:
1. Requiring Independent Children’s Lawyers to meet directly with a child to provide children with an opportunity to express their views;
2. Powers to enable the Government to regulate Family Report Writers;
3. A definition of ‘member of the family’ that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship.
4. The power to protect parties and children from the harmful effects of protracted litigation.
The changes imposed by the Family Law Amendment Bill 2023 are currently awaiting a commencement date to be appointed by Parliament, however it is expected that they will come into effect in the near future.
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