Presumption of “Equal Shared Parental Responsibility” Removed:  Child’s Best Interest is Paramount

The Family Law Amendment Bill 2023 is a significant change in family law, particularly in relation to child custody and parenting arrangements. If you have a child custody dispute, you will need to understand these changes as they may impact the outcome of your matter in court. It may also impact the terms you may wish to propose in negotiations with the other party on parenting arrangements.

These changes come about following an Australian Law Reform Commission report in 2019.

On 19 October 2023, the Australian federal parliament passed two pieces of legislation to amend the Family Law Act 1975 (‘FLA’). Some of the changes include:

• Removing the presumption of “equal shared parental responsibility.” Previously, with this presumption in place, it meant that in negotiations and court hearings, the starting point was a presumption that each parent had an equal right to make major decisions about their children, such as schooling, medical, and religious issues. Following on with this presumption, under the previous legislation, the Family Court must then consider whether it is in the child’s best interests for the child to spend equal time or substantial and significant time with each parent. The Australian Law Reform Commission found that with this presumption in place, many parents misinterpreted it to mean that both parents should have an equal amount of time with the child. This presumption is now abolished. The starting point is no longer the parent’s right to equal parental responsibility. The focus is now clear: the one or only factor that prevails is the child’s best interest.
• What factors the court is required to consider in determining the child’s best interests has been reduced from 15 factors under the previous legislation to 7 under the amendments legislated. The aim is to simply matter and put the focus on a child’s best interest. The seven factors include a child’s safety, their views, the benefit of having relationships with both parents, and the child’s developmental, psychological, emotional, and cultural needs.
• If the Family Court makes an order for the parents to have joint decision-making responsibility on a matter affecting the child, for example, schooling or medical issues, a new provision has been legislated where the parties are now required to consult with each other and make a genuine effort to come to a joint decision on such matters (only if it is safe to do so). In cases where there is family violence, this may not apply.
• The amendments also provide that when a child is spending time with one parent, that parent is not required to consult with the other parent on matters that are not major long-term issues.
• There is a requirement for the Independent Children’s Lawyers (ICL) to meet with the child in certain circumstances.
• Putting the principles of Rice v Asplund (1979) FLC 90 in legislation This case relates to when the Family Court can reopen a matter after final parenting orders have been made. Decided in 1979, this case stated that if any party wishes to vary or set aside a final parenting order, that party must show that there has been a “significant change in circumstances”.  This principle is now captured by the amendments to the Family Law Act.  Therefore, it is now legislated that to change a final parenting order, the party seeking the change must show that there has been a significant change in the circumstances relating to the child and that it would be in the best interest of the child for the final parenting order to be changed.

The media release can be found here https://ministers.ag.gov.au/media-centre/passage-landmark-family-law-reforms-19-10-2023.

If you have any questions about your family law matter, please contact our principal family lawyer and Associate Director, Alexandra Naoum at enquiries@robertsonhayles.com or at our contact number, +61 (8) 9325 1700.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting on or relying on any of the above content.