On 6 May 2024, certain sections of the Family Law Act 1975 (“the Family Law Act”) that govern parenting matters will change.
These changes will affect parenting cases that are currently before the Federal Circuit and Family Court of Australia (“Court”) that are not finalised before that date.
The amendments will also apply to all new applications before the Court regarding parenting matters that are issued after 6 May 2024.
The Family Law Amendment Act 2023 (“the Amendment Act”) substantially reforms aspects of the Family Law Act that relate to how parenting matters are determined.
The major reforms include:
- The removal of the presumption of equal shared parental responsibility;
- The removal of the pathway for making orders about the time children spend with each of their parents;
- The creation of new factors that the Court must consider when determining what is in a child’s best interests; and
- Clarification of what is required of parties who want to change parenting orders once made (without the agreement of the other parent or party).
We will unpack, in a series of articles, the practical effect of the Amendment Act and the impact of these major reforms on Family Law parenting cases.
THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY ABOLISHED
The first major reform concerns parental responsibility.
Whether separated or together, parents have a responsibility to make decisions about major long-term issues concerning their child, such as education, health / medical care, religion / cultural observance, and travel.
Following the breakdown of a relationship, it may become difficult for parents to reach an agreement about major long-term issues affecting their child.
In circumstances where an agreement cannot be reached, parents may apply to the Court for orders that allocate sole or joint decision-making responsibility for some or all major, long-term issues.
Currently, the Family Law Act:
- Defines parental responsibility in relation to a child to mean all the duties, powers, responsibilities, and authority which, by law, parents have in relation to children.
- Provides that each of the parents of a child who is not yet 18 has parental responsibility for the child (subject to court orders). This is despite any changes in the nature of the relationships of the child’s parents. Parental responsibility is not affected, for example, by the parents becoming separated or by either or both of them marrying or remarrying.
- Requires parties who have an order for shared parental responsibility to:
- consult with the other person in relation to the decision to be made about a major long-term issue in relation to the child, and
- make a genuine effort to come to a joint decision about that issue.
- Mandates that 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 their parents to have equal shared parental responsibility for them.
- Allows parties the opportunity to rebut the presumption of equal shared parental responsibility by providing evidence to the Court (for example, evidence of family violence, health issues or substance abuse) that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
This legislation has been in place since 2006.
From 6 May 2024, the Family Law Act will still provide that the parents of a child each have parental responsibility for their child (subject to court orders). However, the presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility will be abolished.
This legislative change is intended to make very clear the distinction between parental responsibility and the time a child will spend with each of their parents. While there has never been any presumption that each parent has an entitlement to spend equal time with their child, the concept of “equal time” as a starting point for determining children’s arrangements was often confused and/or conflated with the presumption of equal shared parental responsibility.
The Attorney General discussed the intention behind the legislative changes with regard to parental responsibility in his Second Reading Speech:
“… it is necessary to amend the law so it is clear that there is not, nor has there ever been, an entitlement for parents to spend equal time with their child after separation. Multiple inquiries into the family law system have recognised that the equal shared parental responsibility provisions, in combination with the associated requirement for the court to consider certain care time arrangements, have been widely misunderstood as creating this right.”
The presumption of equal shared parental responsibility has also been found to adversely impact parents who are not in the Court system, who have tried to negotiate parenting arrangements privately. Without the benefit of legal advice, some parents have agreed to unsafe arrangements for their children and/or themselves because they mistakenly believed the law required them to do so.
Serious concern has also been expressed that the continuing requirement for parents to equally share decision-making for their children and have ongoing consultation with one another about such decisions, has provided avenues for high levels of conflict and coercive control.
CONSULTATION BETWEEN PARENTS ABOUT MAJOR LONG-TERM ISSUES
The Amendment Act provides that, 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.
If an Order has been made that provides for joint decision-making by parents, parents are still required to consult with each other and make a genuine effort to come to a joint decision.
However, such consultation is limited to the specific terms of the Orders made, which may refer to one, some, or all major long-term issues concerning their child, for example, only medical issues. Parents are not encouraged to consult if it would not be safe for them to do so.
While these changes are significant, it is important to note that these reforms do not limit the Court’s power to make Orders about parental responsibility.
Additionally, the amendments may provide an opportunity for parents to seek very specific and nuanced Orders regarding parental responsibility that are better tailored to their specific circumstances, and most importantly, promote the best interests of their child.
Separation can be a difficult and stressful experience for everyone involved. RN Legal’s family law solicitors are committed to ensuring the sensitive handling of all family law matters with utmost respect to confidentiality.
We can guide you through what can otherwise be a complex process and help you understand your legal rights and responsibilities. We provide assistance for a range of matters relating to family law and de facto relationships.
To arrange an appointment to discuss a Family Law matter you may be involved in call us on (02) 9191 9293 or email mail@rnlegal.org.