By Alexandra Moles, Partner, Rachael Murray, Partner & Brooke Nickerson, Lawyer

This week, the draft Family Law Amendment Bill 2023 (Bill) was released proposing a number of significant changes to the Family Law Act 1975 (Cth) (Act) in relation to parenting matters.

 The overarching purpose of the changes is to ensure that the family law system “is accessible, safer, simpler to use, and delivers justice and fairness”.[1]

 The most significant changes include:

1. The simplification of the factors to be considered when determining what is in the child’s best interests.
2. The removal of the presumption of equal shared parental responsibility, and the consideration of specific time arrangements.
3. A new section to codify the rule in Rice v Asplund (1979) FLC 90-725 for the reconsideration of final parenting orders.
4. A requirement that an Independent Children’s Lawyer meet with the child, and provide the child with an opportunity to express any views (except in certain circumstances).

Some of these changes are discussed further below:

Simplification of factors in determining the child’s best interests

 The Court must consider a number of factors in determining what is in a child’s best interests. These factors are found at section 60CC of the Act, and include two primary considerations and 13 additional considerations.

The draft Bill removes the structure of primary and additional considerations, and refines the list of factors to 6 considerations.

The proposed amendments to section 60CC of the Act have the aim of reducing the complexity of the section, and enhancing the focus on the needs of individual children.[2]

Removal of presumption of equal shared parental responsibility, and specific time arrangements

Currently, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (except in certain circumstances).[3] Where this presumption applies, the Court must then consider whether to make an order for the child to spend equal time with the parents or substantial and significant time with each of the parents.[4]

If the presumption of equal shared parental responsibility is removed, parents will each retain parental responsibility unless this is varied by an order of the Court. The Court could still also consider specific time arrangements in deciding what is in the child’s best interests.

The proposed removal of the presumption of equal shared parental responsibility, and the requirement for the Court to consider specific time arrangements, is a response to a misconception that parents have an entitlement to spend equal time with a child rather than it being an assessment of what arrangements are in the child’s best interests.

It is hoped that the changes will simplify the framework for making parenting orders, and ensure that the legislation is more child-focused.

Codify the rule in Rice v Asplund

The rule in Rice v Asplund (1979) FLC 90-725 provides that in order to vary or set aside final parenting orders, a person must establish that there has been a “significant change in circumstances”.

The draft Bill includes a new section which codifies the rule in Rice v Asplund (1979) FLC 90-725. The new section would require the Court to consider whether there has been a significant change of circumstances since the final parenting orders were made, and whether it would be in the best interests of the child for the final parenting orders to be reconsidered.[5]

It was felt that such a fundamental rule should be clearly stated in legislation, and that there is a need to clearly state the application of the rule and what may constitute a “significant change in circumstances” in order to avoid misinterpretation.

[1] Attorney-General’s Department, Exposure Draft – Family Law Amendment Bill 2023 Consultation Paper (January 2023), 4.

[2] Attorney-General’s Department, Exposure Draft – Family Law Amendment Bill 2023 Consultation Paper (January 2023), 4.

[3] Family Law Act 1975 (Cth), section 61DA

[4] Family Law Act 1975 (Cth), section 65DAA

[5] See section 65DAAA of the Family Law Amendment Bill 2023