It looks like more change is afoot in the family law world. The Federal Attorney-General’s Department this week has released a draft bill proposing amendments to the Family Law Act, particularly in regards to parenting provisions. The consultation paper notes that the purpose of the proposed bill is to ensure that “the best interests of children are prioritised and placed at the centre of the system and its operation”.
The main proposed changes include:
- Condensing the objects and principles of the Family Law Act as they relate to children. It is proposed that this be simplified from the current four objects (plus additional object relating to the United Nations Convention on the Rights of the Child) and five principles to just two points, namely:
- To ensure that the best interests of children are met; and
- To give effect to the United Nations Convention on the Rights of the Child.
- Condensing the section outlining how the court determines what is in the child’s best interests, from what is currently two primary considerations,13 additional considerations and “any other fact or circumstance”, down to six generalconsiderations. The six proposed general considerations are concise and 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;
- 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;
- Anything else that is relevant to the particular circumstances of the child.
Further to this, in the case of children who identify as Aboriginal or Torres Strait Islander, an additional two considerations are proposed relating to their right to enjoy their culture and maintain their connection with family, community, culture, country and language.
- Removal of the presumption of equal shared parental responsibility. This currently provides for parents to make major long-term decisions for their children jointly, other than when there is or has been child abuse or family violence.The draft bill proposes that this no longer be the case.
- Removal of the section which requires the court to consider whether a child spending equal time or substantial and significant time with each parent is in the best interest of the child and reasonably practicable.
- Other than in exceptional circumstances, an Independent Children’s Lawyer (ICL), appointed to represent a child’s interests, would now be required to meet with the child and provide them with an opportunity to express any views in relationto matters to which the proceedings relate. At present, ICL’s are at liberty to meet with children, however are not required to do so.
- Regulation of the standards and requirements which family report writers must meet.This currently does not exist.
Whilst this is only a draft bill and naturally it is anticipated that there will be many changes ahead, it will be interesting to watch the evolution of this. Any changes which act to further prioritise the best interests of children and simply the family law system will only be positive.
It is acknowledged that the family law system has been through a number of fairly significant changes in the past few years, including the amalgamation of the previous courts to become the Federal Circuit Court and Family Court of Australia and the introduction of a whole new set of rules. If this new bill is passed, this will create more change in a system that some may feel is already suffering from change fatigue. However, if such change will result in children’s needs being more highly addressed and the process for navigating family law issues less complex, then such change should be embraced.
We are waiting to see what comes from the consultation process and eager to be part of any changes to the family law system that benefit children. In the meantime, should this raise any issues for you, or you require assistance with parenting matters, please contact our Brisbane, Ipswich, North Lakes, Toowoomba or Dalby offices today by phoning 07 4639 0000 or emailing us at info@bwbfl.com.au.
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