The Federal Attorney-General’s Department has released a draft bill proposing significant amendments to how parenting matters are dealt with under the Family Law Act (“the Act”).
Best interests of the child
Most of the proposed changes seek to enhance the objective that the best interests of the child are met. This includes a proposed amendment to the objects of the Act to simplify them to only two (2) points being:-
- to ensure the best interests of the child are met; and
- to give affect to the UN Convention on the Rights of the Child.
The proposed changes also seek to simplify and streamline how the Court determines what is in the best interests of the child. Currently the Act provides that there are two primary considerations and an additional thirteen considerations when determining the best interests of the child. The proposed amendment would see this condensed into just six general considerations. These include:-
- What arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm (previously a primary consideration);
- Any views expressed by the child;
- The developmental, psychological and emotional needs of the child;
- The capacity of each proposed carer to provide for the child’s needs, having regards to the carer’s ability and willingness to seek support to assist them with caring;
- The benefit to the child of being able to maintain a relationship with both of the child’s parents and other people who are significant to the child, where it is safe to do so (previously a primary consideration);
- Anything else that is relevant to the particular circumstances of the child.
Equal Shared Parental Responsibility and Equal Time
There is a long-held misconception that equal shared parental responsibility equates to each parent having a right to equal time with the child. This is not the case. Equal shared parental responsibility relates to the ability to make long-term or major decisions for the child. Currently the Act provides that there is a presumption that it is in the child’s best interest for parents to have equal shared parental responsibility except in circumstances of domestic or family violence. The proposed changes would remove this presumption with parental responsibility for long term decision making to be determined on a case-by-case basis with the focus being on what is in the child’s best interests.
Similarly, there is currently an obligation under the Act for the Court to consider whether a child spending equal time or significant and substantial time is in the best interests of the child and reasonably practicable. It is proposed that this obligation be removed, and care arrangements be determined on a case-by-case basis with the focus being on what is in the child’s best interests.
Independent children’s lawyers (“ICL’s) and the child’s views
The proposed changes would also include a requirement for ICL’s to meet with children and provide them the opportunity to express their views on the parenting arrangements. Currently while an ICL can meet with a child, they are not required to do so and many elect not to. This proposal attempts to enhance the ability for the child’s views to be heard and to ensure that the ICL, whose role it is to advocate for the best interests of the child, are properly informed of the child’s views.
Overall, the proposed changes appear to seek to further prioritise the best interests of children by simplifying how this is determined and achieved.
The consultation period for the draft bill closed at the end of February and it will be interesting to see which proposed changes, if any, are accepted into the Act in the near future.
In the meantime, if you need any assistance with your family law matter, please contact the Macrossan & Amiet Family Law Team in Mackay for assistance.
