Family Law Amendment Bill 2023 – Initial Thoughts on proposed amendments to section 60CC, 61DA and 65DAA
The Federal Government has published an exposure draft of the Family Law Amendment Bill 2023.
If enacted, this Bill would significantly amend the Family Law Act 1975 (“Act”), to:
- Require an Independent Children’s Lawyer, when appointed, to meet directly with children;
- Increase a Judge’s discretion to appoint an Independent Children’s Lawyer in matters under the Hague Convention on the Civil Aspects of International Child Abduction;
- Provide the Court the ability to make orders preventing someone from continuously filing family law applications against a former partner if doing so is likely to cause harm;
- Expand the definition of ‘member of the family’ to ensure it is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
- Simplify compliance and enforcement provisions for child-related orders; and
- Create regulation-making powers to enable Government to establish schemes that set requirements for family law report writers.
The most drastic changes however, and those that will be relevant to every family navigating arrangements for the care of children, are:
- for the amendment of section 60CC (which sets out the factors the Court is required to consider when determining the best interests of a child); and
- the removal of 61DA, the presumption that it is in a child’s best interests for both of their parents to have equal shared parental responsibility, and section 65DAA which is the requirement to consider making an order for equal time or substantial and significant time when the Court makes an order for equal shared parental responsibility.
Section 60CC
In its current form, section 60CC contains two primary considerations and 14 additional considerations, many of which overlap, are not applicable to many families, but all of which the Court must consider when determining what Orders are in a child’s best interests. This is 16 considerations any Judge is required to reflect upon when making parenting orders.
The draft Bill proposes to heavily simplify section 60CC, with only 6 factors applying to all children.
The generally applicable factors are:
- what arrangements would best promote the safety of the child and each carer of the child;
- the child’s views;
- the developmental, psychological and emotional needs of the child;
- the capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, with particular regard to the willingness of the carer to seek assistance and support in relation to those matters;
- the benefit to the child of maintaining relationships with both parents, and other people significant to the child where it is safe to do so; and
- a catch-all.
Simply put, the approach to determining a child’s best interests would mostly remain the same, but the applicable considerations would be easier and simpler to understand and apply.
Section 61DA
Section 61DA provides that, when making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents of the child to have equal shared parental responsibility.
The presumption does not apply when there are reasonable grounds to believe that a parent, or another person who lives with that parent, has committed child abuse or family violence. The presumption can also be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
To avoid confusion, parental responsibility relates to making decisions about children. It has nothing to do with where a child lives or whom they spend time with.
The draft Bill proposes to remove the presumption of equal shared parental responsibility, meaning there would be no default position.
In simple terms, the removal of section 61D will mean that where there is a dispute about parental responsibility, each parent (or other adult) will be required to provide evidence to the Court supporting their position about the allocation of parental responsibility rather than the burden falling to only one party to persuade a Court why equal shared parental responsibly should not occur.
Section 65DAA
The Bill would repeal 65DAA.
Section 65DAA requires the Court, where equal shared parental responsibility is ordered, to consider whether an order for equal time is in the child’s best interests and reasonably practicable.
If, after considering that option, the Court decides not to order equal time, it is required to consider whether an order for the child to spend “substantial and significant time” with each parent is in the child’s best interests and reasonably practicable.
It must consider those options even if neither parent is actually seeking orders for equal time.
The consequence of section 65DAA being removed is that the Court would no longer be required to consider an equal time arrangement for a child unless one of the parties to the proceedings is actually asking for such an arrangement. The Court will simply be required to consider the positions put before it, and based on the evidence presented by the parties, make a decision about the child’s living arrangements that are in its best interests and reasonably practicable.
The exposure draft has been released to the community for feedback and may not necessarily reflect the scope of the final Bill that the Australian Government introduces to the Parliament following the consultation process, however, RNG Lawyers will continue to keep our clients and community informed of any and all changes as they occur.
If you have any questions or would like to discuss this matter further, please contact Jessica Black or our Family Law Team on (03) 9739 7377
Written by RNG Lawyers Family Law team member, Jessica Black