The parliament has passed two significant pieces of legislation in the family law system. The purpose of the Bill, according to a Parliamentary statement, is “to ensure that the best interests of children are prioritized and placed at the center of the family law system … The Family Law Act 1975 has become convoluted and is not meeting the needs of separating families.”
Significantly, the amendments passed today repeal the presumption of ‘equal shared parental responsibility’ provisions in the Family Law Act 1975.
The new laws also include:
- requiring Independent Children’s Lawyers to meet directly with children;
- greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation;
- 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;
- simplified compliance and enforcement provisions for child-related orders;
- powers to enable the government to regulate family report writers;
- ensuring that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.
The best interest of the child
Section 60CC of the Family Law Act sets out how a court is to determine the best interest of a child. the current section outlines two primary considerations:
- the significance of fostering a meaningful relationship between the child and both parents; and
- the imperative to shield the child from physical, psychological, and emotional harm. Additionally.
Section 60CC has 14 additional considerations for the court to consider. For example, the child’s expressed views, the nature of their relationships with each parent, and the potential repercussions of any alterations in circumstances.
The proposed Amendment Bill narrowed down the additional considerations to the following six elements:
- Promotion of Safety: Evaluation of arrangements that would enhance the safety of the child and all individuals responsible for their care.
- Child’s Express Views: Acknowledgment of any perspectives articulated by the child regarding their situation.
- Developmental, Psychological, Emotional, and Cultural Needs: Examination of the child’s developmental, psychological, emotional, and cultural requirements.
- Parental Capacity: Assessment of the capacity of each individual slated to assume parental responsibility in meeting the child’s needs.
- Benefit of Relationship: Consideration of the advantages to the child in maintaining relationships with both parents and other individuals, contingent upon safety.
- Relevance to Circumstances: Inclusion of any other pertinent factors germane to the unique circumstances surrounding the child.
If the child is Indigenous, the court will also be required to consider:
- Their right to enjoy their culture; and
- And the impact the proposed orders are likely to have on that right.
Equal shared parental responsibility
In accordance with the current framework of the Family Law Act, specifically under sections 61DA and 61DB, a presumption is that when a court is formulating parenting orders, both parents hold equal shared parental responsibility for the child. This presumption dictates that the court initiates its considerations with the premise that it is in the child’s best interests for both parents to equally bear the duties, powers, and responsibilities associated with parenting, including the authority to make long-term decisions regarding the child.
However, the proposed Amendment Bill seeks to eliminate the presumption of equal shared parental responsibility. Consequently, each party involved will be required to present evidence supporting their respective proposals for the sharing of parental responsibility. This shift necessitates a departure from the automatic presumption and underscores the importance of substantiating the appropriateness of any proposed arrangement through evidentiary support.
Variation of orders
Under the common law, in the case of Rice v Asplund, final parenting orders can only be varied where there has been a significant change in circumstances.
The Amendment Bill proposes to make the Rice v Asplund rule clear in the Family Law Act, by stating that the court must not reconsider final parenting orders unless:
- It has considered whether there has been a significant change in circumstances, and
- it is satisfied that in all the circumstances it is in the best interests of the child for the order to be reconsidered.
Contraventions of parenting orders
The Amendment Bill proposes to amend the provision of the Act relating to the consequences of non-compliance with parenting orders.
The changes include a proposal to introduce a presumption that if a parent is found to have breached an order, the court must make a costs order against them.
The Bill also proposes to remove the court’s power to order a parent to perform community service for non-compliance with orders.
Independent Children’s Lawyer
Section 68L of the Family Law Act provides for the independent representation of a child’s interests, by enabling the court to appoint an ICL. The proposed amendment will expand the duties of an ICL, as explained in the Explanatory Memorandum to the Bill, by including a requirement for the ICL to meet with the child and to provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate, “unless exceptional circumstances apply”.
This provision, according to the Explanatory Memorandum, “will ensure that the child is provided an opportunity to express views and to be heard, consistent with Article 12 of the [United Nations Convention on the Rights of the Child].”
Conclusion
It will be more difficult when one parent is going to push for an equal shared responsibility. We look forward to the difference ICL will be making by giving ICL more responsibilities. We are hoping for the incorporation of amendments that will truly and practically be in the best interests of the child.
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