The Family Law Amendment Bill 2023

The most significant change in Family Law Parenting legislation since 2006 are coming in 2023-2024! Watch this space for more updates!

At present the Australian Federal Government has requested feedback and responses to the draft Family Law Amendment Bill 2023.

What happened in 2006?

On 1 July 2006, the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into effect. The concept of the ‘presumption of equal shared parental responsibility’ was introduced. It was believed that children’s major decisions should be made with the joint input, collaboration, and agreement of both their parents when separation occurs.

In addition, the presumption of equal shared parental responsibility triggered the requirement to consider either an equal shared parenting arrangement or a significant and substantial time arrangement is best for children when parents separate.

What has been the effect of the 2006 changes?

In the past two decades we have seen an increase in confusion, misinterpretation and children suffering because parent arrangements were ordered or agreed upon which did not focus on the core issues and needs of the individual child/children.

The 3 main misconceptions/confusion about parenting after separation are:
i. That parents must agree on all decisions that relate to children.
ii. That parents are entitled to have equal time or access to children.
iii. That what the child wants is rarely given effect.

What’s happening in 2023?

The Australian Federal Government is proposing to change the way Parenting Matters are dealt with under the family law legislation. An opportunity is provided to the community to offer feedback on the current proposal. The deadline was 23 February 2023 for written feedback.

What is the Proposal?

There are eight key areas that are being proposed to be over-hauled as follows:
i. How parenting Orders are made.
ii. Enforcement of parenting Orders
iii. Definition of “member of family’ and ‘relative’
iv. Independent Children’s Lawyers
v. Management and procedure of cases
vi. Protecting sensitive information
vii. Communication of family law proceedings
viii. Establishing a regulatory scheme for family law professionals

Below are some of the high-level and significant changes that are proposed:

1. How will Parenting Orders proposed to be made?

Firstly, by repealing the Presumption of Equal Shared Parental Responsibility:

It is proposed that the presumption of equal shared parental responsibility be removed and that decisions regarding children are made either jointly or separately by parents. It is argued that the removal of the word ‘presumption’ and ‘equal’ and ‘shared’ will prevent separated parents from focusing on this issue and instead concentrate their attention on the needs of their children.

This means that separated parents will ‘automatically’ have a role in deciding whether their child requires medical treatment or not.

Note: The Court will have the power to vary parental responsibility and allocate it solely to one parent if it will best meet the needs of the child were parent’s request this or the Court sees a need.

Secondly, it is proposed to remove the mandatory consideration of equal time or significant and substantial time.

This means that there is not necessary for the court to consider whether a ‘shared care arrangement’ is best for children.

Instead, the court will not be required to consider equal time or significant and substantial time, rather its focus will be on parenting arrangements that meet the needs of the specific child.

Thirdly, it is proposed to remove the current list of factors that are considered by the court when it determines making Orders that are in the best interest of the child. Currently there are 2 primary considerations and 13 additional considerations. And the overriding factor is the safety of children.

The following are proposed to be the new list of factors with no priority given to any of the best interest’s factors.

  • What arrangements best promote the safety of the child and child’s carer, including safety from family violence, abuse, neglect or other harm
  • Any views expressed by the child.
  • The development, psychological and emotional needs of the child
  • Benefit of being able to maintain relationships with parents and other significant people.
  • The capacity of carer to provide for the child’s developmental, psychological, and emotional needs and willingness to seek support to assist.
  • Anything else that is relevant to the circumstance of the child.

2. Emphasis is being placed on the wishes of children by:

i. taking into considerations any views expressed by the child irrespective of their age, maturity or cognition of the circumstances.
ii. by mandating that Independent Children’s Lawyers be appointed in Hague Convention matters
and
ii. In parenting matters, positively require that the Independent Children’s Lawyer meet the child and provide them with an opportunity to express their views.

3. Changing Final Parenting Orders

At present varying, altering or changing Final Parenting Orders is a matter of making an application at the Court. The Court relies on the established case law of “Rice and Asplund’ to assess whether a ‘significant change in circumstance’ has occurred.

The new proposal: will codify the principle of “Rice and Asplund”. The court will consider whether it is in the best interests of a child to make changes and whether a significant change of circumstance has occurred to justify any changes to final parenting Orders.

4. Contravention of Parenting Orders

The contravention of Parenting Orders has been a source of much frustration and litigation for parents.

The new proposal: includes a presumption that Costs be awarded where a person has contravened an Order without ‘reasonable excuse” and the removal of ‘community orders’ as a form of punishment.

5. Definition of ‘member of the family’ and ‘relative’

The new proposal: intended to incorporate Aboriginal and Torres Strait Islander kinship systems.

6. Harmful Proceeding Orders

The intention of these proposed orders is to restrain parents or carers from litigation abuse and filing numerous applications which are harmful and vexatious.

The new proposal: will shift its focus from the applicant (the person filing the application) to the impact on the recipient of having to respond and deal with yet another application.

7. Protecting Sensitive Information

Sensitive Information refers to documents that have been created by medical professionals in the course of therapy, counselling or medical care. At present, when a matter is in Court, parties are able to subpoena confidential and privileged notes and records and use them in Court proceedings.

The new proposal: introducing an express power that excludes evidence of such professionals otherwise known as “Protected Confidences.” An applicant may request the production of such material and the court must consider a range of factors before granting leave.

8. Protecting public communication of Family Law Proceedings

Although a current provision exists to prohibit the publication or dissemination of family law proceedings, the new proposal changes the language to prohibiting the communication of family law proceedings in “public places’ – which includes social media platform.

The new proposal: will enable personal and private communication regarding family law matters to be spoken about thereby allowing people to feel supported by friends and family members.

9. Regulations regarding Family Consultants

The current concern is that family report writers and consultants do not meet a standard criteria of qualifications, training or competency.

The new proposal: that a consisted regime be created and implemented to ensure that all family consultants meet the required standards of qualifications and competency.

What’s next:

We would love to hear from you. If you have any parenting or separation matter please contact us to book a consultation with  our family lawyers.

Email us at info@cominoslawyers.com.au or phone us on 02 8999 1800