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Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020

A new bill has been presented to federal parliament to make some changes to the Family Law Act 1975. It relates to a change to the Family Law Act 1975 with regards to clauses that relate to the presumption of shared parental responsibility in family court judgements.

You can read the explanatory memorandum by following the link to legislation.gov.au below.  A bill is proposed legislation not yet enacted.

Due to the way that Bills are written it is hard to see the effect of the proposed legislation.  As Family Dispute Resolution Practitioners it will have a significant impact on the presumptions we work with so it is of importance for us to understand the proposed changes.  Click on this link to view the bill.

https://www.legislation.gov.au/Details/C2020B00080/Explanatory%20Memorandum/Text

I have identified the current clauses and the proposed deletions and changes in a burnt orange colour below. Íf there are amendments to the Bill as it goes through parliament we will update this post.

The parts of the current Family Law Act 1975 that are to be modified by the Bill are highlighted in Burnt Orange.

Family Law Act 1975

61C Each parent has parental responsibility (subject to court orders)

(1)  Each of the parents of a child who is not 18 has parental responsibility for the child.

Note 1:       This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

Note 2:       This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

Note 3:       Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

Proposed Amendements

Subsection 61C(1) (note 2)

Repeal the note.


 

61DA Presumption of equal shared parental responsibility when making parenting orders

When making a parenting order in relation to a child, 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.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA). 

(2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

  (a)  abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

 (b)  family violence.

(3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

61DB  Application of presumption of equal shared parental responsibility after interim parenting order made

If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

2  Sections 61DA and 61DB

Repeal the sections.

65D  Court’s power to make parenting order

(1)  In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

Note:  Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

3  Subsection 65D(1)

Omit “sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and”, substitute “section”.

 

65D  Court’s power to make parenting order

(2) Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

4  Subsection 65D(2)

Omit “61DA (presumption of equal shared parental responsibility when making parenting orders) and”.

 

65DAA  Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)  Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2)  Subject to subsection (6), if:

(a)  a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)  the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

the court must:

 (c)  consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

 (d)  consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

 (e)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

 (3)  For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

 (a)  the time the child spends with the parent includes both:

 (i)  days that fall on weekends and holidays; and

 (ii)  days that do not fall on weekends or holidays; and

 (b)  the time the child spends with the parent allows the parent to be involved in:

 (i)  the child’s daily routine; and

 (ii)  occasions and events that are of particular significance to the child; and

 (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

 (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

  (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

 (a)  how far apart the parents live from each other; and

 (b)  the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)  the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

  (d)  the impact that an arrangement of that kind would have on the child; and

 (e)  such other matters as the court considers relevant.

Note:  Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Consent orders

  (6)  If:

 (a)  the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and

  (b)  the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;

the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).

 (7)  To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.

Note:  Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

5  Section 65DAA

 

Repeal the section.

6  Application of amendments

The amendments made by this Schedule apply to parenting orders that are made on or after the commencement of this Schedule (whether or not the proceedings to which the order relates were initiated before that commencement).

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