Amendments to Family Law Act
By Alecia Featherstone |24 October 2023 |Separation and Divorce-Articles
On Friday the Family Law Amendment Bill 2023 successfully passed through both houses of parliament, signifying a substantial shift in family law legislation. Among the most prominent modifications introduced by this legislation is the elimination of the presumption of equal shared parental responsibility. Previously, there existed a presumption that both parents would jointly share parental responsibility for a child, except in cases involving child abuse or family violence. This presumption then necessitated an assessment of whether it was in the child's best interests to spend equal or substantial and significant time with each parent. However, as part of the amendments these provisions have now been removed, and the decisions regarding the child's welfare will exclusively hinge upon an evaluation of their best interests.
Furthermore, this bill has undertaken a comprehensive consolidation of the matters that the Court must consider when determining what is in the child's best interests, as delineated in section 60CC. The factors for consideration now encompass:
- - what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child, and each person who has care of the child;
- - any views expressed by the child
- - the developmental, psychological, emotional and cultural needs of the child
- - the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
- - the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
- - anything else that is relevant to the particular circumstances of the child
Additionally, noteworthy changes encompass a mandate for Independent Children's Lawyers to engage with the child, affording them an opportunity to express their views, if they wish to. The redefinition of the concept of 'family' underscores a more inclusive embrace of Aboriginal and Torres Strait Islander culture and traditions.
Further amendments address the clarification of prevailing restrictions governing the publication of information related to family law proceedings, thereby eliminating past sources of confusion. The amendments also aim to bolster adherence to and enforcement of parenting orders, while establishing standards and requirements for family report writers.
The significance of these changes cannot be overstated, marking one of the most substantial overhauls in family law since the inception of the Family Law Act in 1975. It will be of keen interest to observe the evolution of this legislative landscape as it matures and adapts in response to emerging case law.
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