The passing of the most recent Family Law Amendment Act on 19 October 2023 brings significant changes to the current regime, which was instituted in 2006.
The first key amendment is the removal of the presumption of equal shared parental responsibility.
What is parental responsibility?
Parental responsibility is the responsibility parents have to make major long-term decisions about the welfare and development of a child ─ for example the area in which they will live, the school they attend, significant medical decisions, their name, and religious or cultural upbringing.
The current regime
The current section 61DA provides that parents should have equal shared parental responsibility (ESPR), which has often been conflated incorrectly with section 65DAA as giving parents a right to equal time with children. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child, or family violence, and can be rebutted if the court determines it is not in the best interests of a child to apply the presumption.
Where the Court makes an order for equal shared parental responsibility, under section 65DAA it must consider making an order for equal time, if it is reasonably practicable and in the best interests of a child to do so.
The combination of section 61DA and section 65DAA has operated, for the last 17 or so years, to create confusion in parents as to "rights" to equal time. This has meant that parents have often entered into negotiations or litigation based on mistaken assumptions about their entitlements under the Family Law Act 1975.
The new regime
The new amendments now provide that a parenting order allocating responsibility for making decisions about major long-term decisions (as defined in section 4(1)) may provide for joint decision-making, or sole decision-making ─ or may also provide for a person to have sole parental responsibility for particular issues, and joint decision-making for the remainder of major long-term issues. Any allocation of responsibility for major long-term decisions is now based on what is in the child's best interests, as determined by the new section 60CC provisions (which we discuss in more detail here.)
If the Court makes an order for joint decision-making about any issue, then under the new section 61DAA the parties are required:
- to consult each other person with joint responsibility in relation to each such decision; and
- to make a genuine effort to come to a joint decision.
Helpfully, particularly for schools and medical/mental health practitioners, the amendments specifically provide that any other person is not required to establish that there has been a joint decision, before acting on a decision communicated by a person with decision-making responsibility.
The amendments also make it clear in section 61DAB that parents are not required to consult with each other regarding decisions that are not major long-term issues, if a child is spending time with that parent. This resolves long-running tensions as to what a parent can and cannot do whilst a child is in their care, once an order has been made in respect to responsibility for making major long-term decisions.
Where to from here?
It is almost inevitable that there will be an increase in litigation following the amendments coming into effect, as was seen with the 2006 and 2012 amendments, as parents seek clarity around how the amendments apply to their family circumstances. We may also see parents seeking to vary older orders (see our article on the requirements to vary parenting orders) if they believe the new legislation will be more favourable to their situation.
However, where the current regime has always considered the best interests of the child as paramount in determining parenting orders, it remains to be seen if the amendments will make a significant difference to outcomes in contested parenting proceedings. At least in theory, outcomes in court-determined matters should not be significantly different under the new regime.
With that said, the removal of references to equal time and equal shared parental responsibility may lead to differences in negotiated outcomes (where the misunderstandings referred to above have, hopefully, been removed). It may also lead to increased litigation, at least initially, where parties can no longer point to the presumption of ESPR and the consequences that currently flow under section 65DAA as a basis for their position in those negotiations.
If you need assistance in relation to your parenting matter, please do not hesitate to contact one of our experienced family lawyers.
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.
