Family Law Reforms: Parental Shared Responsibility

Following recent legislative changes in the field of family law, from 6 May 2024 we will see major changes in how the Federal Circuit and Family Court of Australia (FCFCOA) will deal with parenting matters and how it considers parenting applications.

The changes will affect all new parenting matters, and those already before the Court but not concluded before 6 May 2024.

The Family Law Amendment Act 2023

The Family Law Amendment Act 2023 sets out new laws concerning:

• What a court must consider when determining what is in the child’s best interests;
• Who will be responsible for making decisions about long term issues for a child;
• When a child will spend time with the parent with whom they will not live; and
• Whether a concluded parenting case can be re-opened.

Under the Family Law Amendment Bill 2023, the child , the child’s wellbeing, and the child’s rights, are now of paramount importance to the Court when parenting orders are being made.

The substantive changes introduced not only consider what are the best interests of the child in the matter, but also allow for a stronger connection between the Court and the First Nations community.

Changes to Equal and Shared Parental Responsibility

Under the old regime (section 61DA of the Family Law Act 1975), the Court had to make the presumption that it was in the best interests of the child for the parents to have Equal Shared Parental Responsibility (ESPR).

If a Court decided in favour of ESPR, section 65DAA of the Act meant that the Court must consider making an order for the child to spend equal time with both parents if it was reasonably practicable and in the best interests of a child to do so.

This resulted in many parents believing that they were automatically entitled to equal time arrangements, and equal responsibility arrangements, in circumstances that did not warrant it.

Similarly, parents assumed that they should make all decisions about long term issues concerning the child equally.

Following the recent changes to legislation:

• there is no longer a presumed starting point of ESPR;
• the concepts of ‘equal time’ or ‘substantial and significant time’ are no longer found in the Family Law Act; and
• there is no longer a ‘trigger’ for the consideration of these terms.

How will the Court decide the time spent with each parent?

Under the new amendment, each parenting matter will now be determined on its own merits and according to what appears to be in the best interests of each child, meaning that the Court will be open to making specifically tailored arrangements to suit the individual circumstances or situation. 

It will take into consideration the safety of the child and its parents/carers, the child’s own views where appropriate, the needs of the child, and the benefit of the child having a relationship with each parent and other people of significance including siblings and grandparents.  Another issue of importance will be the cultural circumstances and how a parenting arrangement will assist (or otherwise impact) the child experiencing aspects of its culture – including Indigenous Australians.

How will it impact long-term decision making concerning the child?

Under the new section 61D(3), a parenting order can be made that allocates the sole decision-making responsibility for a child to one parent.  It can also be stipulated that one parent is responsible for making specific long-term decisions in relation to the child – such as those decisions relating to education, health and welfare or religious upbringing.

If the Court makes an order for there to be joint decision-making, the parents will be required to make a genuine effort to come to a joint decision and make decisions based on the best interest of the child. 

More information

For more information on the changes to Family legislation, and whether they might impact on your own parenting matter, contact the experienced family law team at Maclarens Lawyers on ph: 02 9682 3777.