Presumption of equal shared parental responsibility set to be abolished

In what may be the most significant change to the Family Law Act 1975 in nearly two decades, the presumption that parents shall have equal shared parental responsibility for their children is set to be abolished under proposed changes.

In its 2019 report into the family law system, the Australian Law Reform Commission found the presumption that separated parents have equal shared parental responsibility of their children was too frequently interpreted to mean a presumption of equal shared care arrangements. The report also found that this misapprehension led to unrepresented parties believing that they were required to enter into equal shared care arrangements for their children.

Although under the current legislation, the presumption may be rebutted in circumstances where there are reasonable grounds to believe that the child has been exposed to abuse or family violence, this misinterpretation of the law is said to have created a risk of harm, particularly when separating parents were not legally represented.

The proposed amendments instead encourage parents to consult each other regarding major long-term decisions for their child and consider the child's best interests. This provision is subject to any court orders and includes an exception - that parents are only encouraged to consult each other when it is safe to do so.

A child's "best interests"

The proposed changes will also simplify the factors to be considered when contemplating what is in a child's best interests. The current list of 15 considerations is to be reduced to seven, with the Federal Circuit and Family Court of Australia to consider the following:

• What arrangements would promote the safety of the child and each person who has care of the child, including safety from family violence, abuse, neglect or other harm;
• Any views expressed by the child;
• The developmental, psychological, emotional and cultural needs of the child;
• The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• 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; and
• Anything else that is relevant to the particular circumstances of the child.

A further consideration is to be included in the court's assessment of a child's best interests if the child is Aboriginal or Torres Strait Islander, which aims to allow the child to connect, and maintain that connection, with members of their family, culture, community and language.

The proposed Family Law Amendment Bill is expected to pass through the Senate with substantial crossbench support. We will monitor the status of the Bill and ensure clients and Lander & Rogers' professional network are kept informed of its progress.

For more information about the proposed changes and how you may be impacted, please contact a member of our team.