Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Best interests of children
1 Paragraph 4(1AB)(b)
Repeal the paragraph, substitute:
2 Paragraph 60A(a)
Omit "and the principles underlying it,".
3 Subdivision B of Division 1 of Part VII (heading)
Omit " , principles ".
4 Section 60B
Repeal the section, substitute:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2023, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
5 Section 60C (table item 1, column headed "Divisions and coverage")
Omit "principles underlying it, and".
6 Section 60CC
Repeal the section, substitute:
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(e) 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;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child's family.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3) For the purposes of paragraph (1)(b), the court must consider the following matters:
(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
7 Subsection 60CD(1)
Omit "60CC(3)(a)", substitute "60CC(2)(b)".
8 Paragraph 60D(1)(b)
Repeal the paragraph, substitute:
(b) encourage the person to act in the child's best interests by applying the considerations set out in subsections 60CC(2) and (3).
9 Paragraph 68N(b)
Omit "and principles".
10 Subsection 68P(2C)
Repeal the subsection.
10A After subsection 68P(3)
Insert:
(3A) Paragraph (3)(c) does not require the court to give a copy of the order or injunction to a child if the court is satisfied that it is in the child's best interests not to receive a copy of the order or injunction.
11 Paragraph 68S(2)(a)
Omit "60CC(3)(a) (about taking into account a child's views etc.)", substitute "60CC(2)(b) (about taking into account a child's views)".
12 Application provision
The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this item commences;
(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.
Part 2 -- Parental responsibility
13 Subsection 61C(1) (note 2)
Omit "See section 61DA for the presumption that the court does apply when making a parenting order.".
14 After section 61C
Insert:
61CA Consultation between parents on major long-term issues
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a) to consult each other about major long-term issues in relation to the child; and
(b) in doing so, to have regard to the best interests of the child as the paramount consideration.
15 At the end of section 61D
Add:
(3) A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
16 Sections 61DA and 61DB
Repeal the sections, substitute:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
61DAB No need to consult on issues that are not major long-term issues
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major long-term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order.
17 At the end of section 61F
Add:
Note: The expression Aboriginal or Torres Strait Islander culture is defined in subsection 4(1).
18 At the end of subsection 63C(2B)
Add:
Note: For the definition of major long-term issues , see subsection 4(1).
19 Paragraphs 63DA(2)(a) and (b)
Repeal the paragraphs.
20 Subsections 63DA(3) and (4)
Repeal the subsections.
21 At the end of subsection 64B(3)
Add:
Note 1: See also subsection 61D(3) and section 61DAA in relation to parenting orders dealing with allocation of responsibility for making decisions about major long-term issues.
Note 2: For the definition of major long-term issues , see subsection 4(1).
22 Subsection 65D(1)
Omit "sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and", substitute "section".
23 Subsection 65D(2)
Omit "61DA (presumption of equal shared parental responsibility when making parenting orders) and".
24 Sections 65DAA, 65DAC and 65DAE
Repeal the sections.
25 Application provision
(1) Subject to subitem (2), the amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this item commences;
(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.
(2) Section 61CA of the Family Law Act 1975 , as inserted by this Part, applies from the day this item commences.
Part 3 -- Child-related proceedings
26 After section 65D
Insert:
65DAAA Reconsideration of final parenting orders
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a) the reasons for the final parenting order and the material on which it was based;
(b) whether there is any material available that was not available to the court that made the final parenting order;
(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
27 Application provision
The amendment made by this Part applies in relation to final parenting orders whether the orders came into force before, or come into force on or after, the day this item commences.