Family Law Amendment Bill 2023

One of my first blogs on the Kilmartin Legal website was looking at the 2006 shared parenting amendments and where we were at the time in terms of contemporary parenting arrangements after separation for children and parents back in 2021.

The Albanese government has announced major reforms to the parenting provisions in Part 7 of the Family Law Act 1975 which includes removing the concept of coparenting in Australia. The concept of coparenting is a theory that both parents should be responsible for the care and welfare of children after separation and that children will usually thrive from having the involvement of both parents in their lives.

The rationale for the amendments the Albanese government says is to prevent domestic violence perpetrators from using the shared parenting provisions to continue controlling victims of domestic violence. They also assert that people misunderstand the law as requiring the children to spend equal time with both parents after separation which again leads to domestic violence. On this basis, they assert the legislation needs to be simplified, however, some legal experts and academics suspect there could be some ulterior motives behind the proposed amendments.

Removal of Coparenting in Australia

 The proposed amendments will repeal section 60B which contains the objects and principles underlying the parenting provisions of the Family Law Act.

This will see the removal of the best interests of the children being met by:

(a)   Ensuring children have the benefit of their parents having a meaningful involvement in their lives; and

Additionally, the following objects and rights will also be removed:

(b)   The right to children knowing and being cared for by both parents.

  (c)   The right for children to spend time and communicate on a regular basis with both parents.

  (d)   Parents jointly sharing duties and responsibilities concerning the care, welfare and development of their children; and

(e)   The concept that both parents should be able to agree about the future of the children.

The Albanese government states the justification for removing s. 60B is because this section of the Act often gets confused with the best interest considerations in section 60CC.

Moving onto section 60CC which contains the considerations a Court will look at in determining what is in the best interests of a child when making a parenting order. The 60CC(2) primary consideration factors are being abolished which includes the removal of:

(a)   the benefit to the child having a meaningful relationship with both parents.

The section 60CC factors are being replaced by one set of 6 factors and specifically the benefit to the child having a meaningful relationship with both parents is proposed to be replaced by the following consideration:

The benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so

 The intention of this clause as explained in the draft consultation is to place the emphasis on the maintaining of existing arrangements. This could then mean there is less of a mechanism for parents seeking more time with their children in circumstances where it has been minimised by the other parent.

The other proposed new best interest factors include:

·        any views expressed by the child

·       the developmental, psychological and emotional needs of the child

·       the benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so.

·       the capacity of each proposed carer of the child 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, and

·       anything else that is relevant to the particular circumstances of the child.

The list of new factors proports to encapsulate the existing factors and amalgamate them, under the one heading. Does this then make the considerations too broad?

Also the bill proposes to place more emphasis on the views of the child, so what was previously an additional consideration has been deliberately placed at the top of the list of the new proposed singular considerations for this reason. It has not been the law that children’s views are binding in Australia in fact often too much pressure is placed on children to decide which parent they want to live with and how much time they spend with the other. Placing more impetus on the children’s views would need to be carefully monitored and will need to continue to be considered together with the other factors.

The most controversial amendments for the supporters of shared parenting will be the abolishment of section 61DA which will mean there is no longer a presumption that both parents have equal shared parental responsibility for decision making in relation to long term decisions about a child’s health, education, religion and so forth.

Section 65DAA is proposed to be removed which means that the court will no longer have to consider both equal time arrangements and arrangements for substantial and significant time where the presumption of equal shared parental responsibility has not been rebutted by domestic violence. The Court in any event will still need to consider these arrangements if either parent is seeking them.

The government states the reasons for removing equal time and substantial time considerations from the legislation are because:

·       time considerations are an unnecessary additional step in the decision-making framework

·       it detracts from a focus on what is in a child’s best interests, and

·       provides scope for exacerbating conflict.

Statistics are often thrown out there in support of the removal of the shared parenting regime to support the assertion that shared parenting arrangements are problematic and are seldom in the best interests of the children particularly when they are imposed on a parent.

However, from experience more often than not there are many parents who amicably enter into equal time parenting arrangements after separation, such as week-about because it allows for greater flexibility for working in days where the cost of living is high and for more leisure time/respite for the other parent to enjoy in their time off from the children. The parent with the children also enjoys broad ranging time to be part of the child’s life and not just as a weekend visitor or Disney parent.

The question really beckons here, why wouldn’t both parents automatically have an equal say in relation to how a child is going to be raised? Is it really better to allow one parent to make all the decisions while the other gets pushed off to the side and potentially alienated?

Setting Aside/Variation of Final Orders

The proposed legislation also seeks to codify the rule in Rice v Asplund into the legislation. For non-legal people what this means is that where there has been a final court order a party cannot seek a variation unless there has been a “significant change in circumstances”. The definition of a significant change in circumstances has not been included so the interpretation of case law will still be relevant and all-consuming of valuable court time.

Contraventions

There are proposed changes to simplify Div 13 in relation to Contravention proceedings as follows:

-          Clarification the court can make an order for additional time/make up time at any stage not necessarily on a proven contravention.

-          Registrars can now make orders for make-up time

-          The Court must make a costs order unless in the circumstances would not be appropriate to do so.

-          There does not necessarily have to be a proven contravention for a costs order to be made against a party.

-          A simplification between less serious and more serious contraventions

-          Gravity of the contravention is the new proposed test not whether it is defined as less or more serious.

Independent Children’s Lawyers

The Independent Children’s Lawyers (ICL) will be required to meet and speak with all children unless they are under the age of 5. In Queensland it is not common practice for the ICL to meet with children. There really is not much to gain from meeting with a younger child even at age 5 this is too young. This introduction really is an overlap of the existing role of the family consultant who is appointed to speak with and ascertain the views of the children anyway. This will cause additional strain on the already stretched Legal Aid system that funds the ICLs and does not seem overly necessary in all cases.

Family Report Writers & Counsellors

There is a simplification of the rules for counsellors and health care professionals providing confidential counselling for children in relation to sensitive information. This would be a good thing as currently the provisions are confusing.

The Bill also proposes to create a scheme for the regulation of Family Report Writers which is similar to the current regulation of Family Dispute Resolution Practitioners (mediators in children’s matters).  This would develop a system of registration, compliance and training for Family Report Writers. It seems sensible that there would be some regulation of Family Report Writers as often their evidence can be crucial in the determination of parenting arrangements which are both safe and child-appropriate.

Conclusion

In all it seems a bit of an overstep to completely remove all of the provisions of the shared parenting reforms of 2006. There is a significant benefit to children having the right to know both parents and in circumstances where there is domestic violence the current legislation already addresses this by providing appropriate protections and does not support children having to endure parenting arrangements which would expose them to domestic violence.

These amendments on the face of it seem to be directed at further appealing towards domestic violence groups whilst potentially ignoring the rights of the children and at the cost of removing coparenting. The new legislation does purport to focus more on the child and their views by the removal of the long list of section 60CC(3) factors and perhaps this is a good thing, however, it is hard to see from the drafting of the proposed amendments how this is going to be achieved.

Drastically overhauling the legislation at a time when there is still backlog of cases from the pandemic and where delays were already the main issue facing parties in the family law courts may only add to the problem.

Are we taking 1 step forward and 3 steps back with these proposed amendments and rather than maintaining a level playing field do we really need this shift of the gold posts back in favour of one parent over the other?

It is concluded as it was on the last occasion, any amendments to the Family Law Act need to be coupled with desperately needed reforms to the child support system which is arguably inadequate for both the payee and payor.