The Federal Government has published an exposure draft of the Family Law Amendment Bill 2023 which proposes inter alia to:
- Amend section 60CC to simplify it with only six factors applying to all children as in its current form the fourteen “additional considerations” often overlap or are not relevant to the vast majority of families. The proposed wording is simpler and more accessible for self-represented litigants.
- Repeal section 61DA so that the requirement for the Court to apply the presumption of ESPR is removed. This will have little practical effect but to remove the presumption and therefore the default position. This means there will not be one party who bears a greater evidentiary onus than another party. The Court will start with a clean slate, assess the evidence, and make findings as to what allocation of parental responsibility is appropriate, which it does anyway.
- Repeal section 65DAA so that it is no longer mandatory for the Court to consider certain time arrangements for a child if it orders ESPR. This means the Court would no longer be required to consider whether an order for equal time is in the child’s best interests and reasonably practicable, or if it is not, whether an order for the child to spend substantial time with each parent is. This will remove the needing to think and record mandate about these things which will have little practical effect as the Court is still required to makes orders in the child’s best interests which may or may not include an equal time arrangement or a substantial time arrangement. It will also remove the requirement for the Court to spend time and resources considering these things even in circumstances where nobody is seeking an equal time arrangement or a substantial time arrangement.
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