Family Law Act Proposed Amendments

The Family Law Amendment Bill 2023 passed the House of Representatives in May and is currently before the Senate. The Bill is based on the recommendations of the Australian Law Reform Commission’s Final Report No 135 and seeks to overhaul the Family Law Act 1975. This page outlines the changes that the Bill proposes.

Best interest of the child

Section 60CC of the Act sets out how a court is to determine what is in a child’s best interests. Currently, the section states that the two primary considerations are:

• the benefit to the child of having a meaningful relationship with both parents; and
• the need to protect the child from physical, psychological, and emotional harm.

Section 60CC also sets out 14 additional considerations for the court to consider. These include the child’s views, the nature of the child’s relationship with each parent and the likely effect of any changes in circumstances.

The Amendment Bill proposes to limit the additional considerations to only the following six considerations:

• What arrangements would promote the safety of the child and each person who has the care of the child;
• Any views expressed by the child;
• The child’s developmental, psychological, emotional and cultural needs;
• The capacity of each person who is proposed to have parental responsibility to provide for those needs;
• The benefit to the child of being able to have a relationship with both parents, and with other people where it is safe to do so;
• Anything else that is relevant to the circumstances of the child.

If the child is Indigenous, the court will also be required to consider:

• Their right to enjoy their culture; and
• And impact the proposed orders are likely to have on that right.

Equal shared parental responsibility

Currently, under sections 61DA and 61DB of the Act, there is a presumption that a child’s parents have equal shared parental responsibility when a court is making parenting orders. This means that the court must take as its starting point that it is in the best interests of the child for the parents to share equally the duties, powers and responsibilities of a parent such as making long-term decisions about the child.

The Amendment Bill proposes removing the presumption of equal shared parental responsibility. This will mean that each party will need to adduce evidence to support their proposal for parental responsibility to be shared.

Changing parenting orders

Under the common law, final parenting orders can only be varied where there has been a significant change in circumstances. This is known as the Rice v Asplund rule.

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 circumstance 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.  

Other proposed changes

The Bill also seeks to address issues of court resourcing, delays and judicial complexities in the Family Law Act.

Responses to the proposed changes

The proposed amendment to the Family Law Act 1975 has been hailed as one of the most important laws of the year. The Law Council and other organisations including Women’s Legal Services Australia and National Legal Aid support the changes.

However, the changes have also been criticised for not doing enough to address family violence and for not attempting to address the phenomenon of legal system abuse. Over half of the parenting matters that come before that court involve allegations of family violence and parties commonly report feeling that their allegations are minimised or disbelieved. Legal system abuse occurs when a party initiates or continues proceedings in order to disadvantage or harass another party.

The government has stated that the changes will make the Act less confusing and allow families to put in place parenting arrangements that are in the best interests of the child. It has also claimed that the changes will create a simpler and more child-focussed framework and promote the safety and wellbeing of children.

If you require legal advice or representation in any matter, please contact Go To Court Lawyers.