The recent passing of the Family Law Amendment Act 2023 on October 19, 2023, ushers in significant changes to the existing framework established back in 2006.
One of the primary amendments involves eliminating the presumption of equal shared parental responsibility (ESPR).
What is parental responsibility?
It encompasses the duty parents carry in making crucial, long-term decisions concerning a child’s welfare and development—such as their residence, schooling, significant medical choices, religious upbringing, and cultural influences.
Under the former regime
Section 61DA of the Family Law Act 1975 (FLA) currently mandates equal shared parental responsibility, often misconstrued with section 65DAA of the FLA, incorrectly seen as granting parents an automatic right to equal time with their children. This presumption doesn’t apply if there are valid concerns about a parent’s abuse toward the child or family violence. Additionally, the court can rebut this presumption if it doesn’t serve the child’s best interests.
When the court orders equal shared parental responsibility (under section 65DAA of the FLA), it considers granting equal time if practical and beneficial for the child.
The combination of sections 61DA and 65DAA of the FLA has, for nearly 17 years, led to confusion among parents about perceived “rights” to equal time. This confusion often prompted negotiations or legal actions based on flawed assumptions about entitlements under the FLA.
The new framework under the Family Law Amendment Act 2023
The amendments now allow a parenting order assigning responsibility for major long-term decisions (as defined in section 4(1)) to involve joint or sole decision-making.
The effect being that 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.
Alternatively, a person may be assigned sole parental responsibility for specific issues while sharing decision-making for other major long-term matters. This allocation is now guided by the child’s best interests, determined by the new section 60CC provisions.
Under the new section 61DAA, if the court orders joint decision-making, parties are mandated to:
- Consult each other concerning these decisions.
- Make genuine efforts to reach joint decisions.
Importantly, the amendments specify in section 61DAB that parents need not consult each other on non-major long-term issues while a child is in their care, resolving longstanding uncertainties about parental rights during such times.
What lies ahead?
The amendments’ implementation may likely trigger increased litigation, similar to the trends observed following the 2006 and 2012 amendments. Parents will seek clarity on how these changes apply to their familial situations. There might also be attempts to modify older orders if the new legislation appears more favourable.
However, while the various frameworks have always prioritised the child’s best interests in determining parenting orders, it remains uncertain if these amendments will substantially alter outcomes in contested parenting proceedings. In theory, court-determined outcomes may not significantly differ under the new regime.
Nevertheless, the removal of references to equal time and shared parental responsibility might influence negotiated outcomes and potentially lead to increased litigation, at least initially, as parties adapt to these alterations.
If you require guidance concerning your parenting situation, it’s advisable to seek assistance from our experienced family lawyers.
Remember, all information provided here is of a general nature and should not substitute specific legal advice. No liability is accepted for any losses incurred due to actions taken or refrained from based on the material published.