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Family Law Amendment Bill 2023: Renewing Emphasis on the Best Interests of the Child

Australian Parliament House

On 19 October 2023 the Australian Parliament has passed amendments to the Family Law Act 1975, Family Law Amendment Bill 2023, which among other things abolish the 'equal shared parental responsibility' presumption due to its reported misapplication.

Key elements of the new laws include:

  • A requirement for Independent Children’s Lawyers to engage directly with children.

  • Enhanced powers to shield children and parties from the negative consequences of prolonged and contentious court disputes.

  • A broader definition of 'member of the family' recognizing Aboriginal and Torres Strait Islander concepts of family and kinship.

  • Streamlined rules for enforcing child-related orders.

  • Authority granted to the government to set standards for family report writers.

  • Improved mechanisms for representing children's perspectives in international child abduction cases under the Hague Convention.

We can expect that Australia's family law landscape is poised for a change with the introduction of this bill. The proposed legislation ushers in a strong re-focus on the needs and best interests of children at the forefront of all parental arrangements (which arguably should have been the case all along under the previous laws, but not always reflected in practice).

Emphasis on Individual Child Needs

At the foundation of the Family Law Amendment Bill is the recognition that every child's situation is unique, and the law must adapt to this diversity. The need for these amendments were rooted in numerous reports of systemic failure to meet individual needs, especially in cases involving family violence, health issues, or substance abuse. The Bill aims to remedy this by removing the presumption of 'equal shared parental responsibility' and related provisions that can detract from considering a child's specific circumstances.

The existing legislation's sections 61DA and 65DAA have been widely misunderstood, leading parents to enter negotiations with incorrect assumptions about entitlements. The Bill repeals these sections, cutting through the confusion and redirecting focus onto what truly serves a child's best interests. Courts will still be able to order shared responsibility and equal time, but their decision-making process will be underscored by a child-centric approach. One might argue that prior to these amendments, the focus has always been on the best interests of the children, so it would be interesting to see how these "progressive" new changes will affect the actual parent's rights in the courtroom.

The Family Law Amendment Bill 2023 aims to correct some misapplication of sections 61DA and 65DAA of the existing legislation, which caused parents to wrongly believe they were entitled to certain parenting rights "by default". By repealing these sections, the new Bill refocuses on the core principle of family law: the best interests of the children, ensuring that decisions about shared responsibilities and parenting time are made with a priority on the children’s needs. It remains to be seen if this will produce any marked difference in practice or will for the most part be a change for change's sake, albeit with some positive optics.

To its credit, the Bill somewhat simplifies the criteria for determining a child’s best interests down to six key factors, making the process more straightforward. Importantly, this includes a specific consideration for the cultural ties of Aboriginal and Torres Strait Islander children, underlining their cultural needs in family law proceedings.

Changes to parenting orders have been clarified, with a specific list of conditions that warrant modifications to existing orders, although the practical significance of this still remains to be seen, as the law for this has been long established in the case of Rice v Asplund.

Children’s input has gained greater importance under the Amendment Bill, requiring independent children’s lawyers to consult directly with children in most situations. This step acknowledges the significance of including children’s perspectives in decisions that affect them.

Notably, the Bill also paves the way for the government to establish professional standards for family report writers, enhancing the quality and reliability of reports that influence court decisions on parenting.

The Family Law Amendment Bill 2023 reflects an attempt to modernise the family law system and to ensure it adapts to the changing nature of Australian family structures with a re-focus on the best interests of children. By putting the welfare of children at the heart of its provisions, the Bill purports to create a more responsive, clear, and just family law system. It bears repeating that the practical effect of the Bill remains to be seen in the courtrooms.

Following assent, the above changes to the Family Law Act 1975 will apply to proceedings commenced after the enactment of these changes, as well as ongoing proceedings that have not yet had a final hearing by the commencement date.


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