In 2006, the Family Law Act (1975) (Act) was amended to introduce the presumption of parents having equal and shared parental responsibility for children. It was often argued that the amendment meant equal time and orders made for equal time, but this was never the intention. The amendment allowed parents to have an equal say in major long-term parenting issues such as education, medical and health matters, religion, schooling, and surname. This meant that even if a child did not live with each parent for an equal amount of time, the parent with less time had to be consulted in relation to these matters.
The government has now passed new amendments to the Act, which will come into operation in May 2024. These amendments repeal the presumption of equal and shared parental responsibility, the related equal time and substantial and significant time provisions. The amendments reinforce that parenting orders should be made based on the child’s best interests with the hope that they will reduce complexity and lead to better outcomes for children.
While the presumption of equal and shared parental responsibility never applied in circumstances where it could be shown that a parent had engaged in violence, abuse or neglect of a child, it now means that a Court will have to allocate responsibility for making long-term decisions. The change allows for joint decision-making between parents, or for one parent to have sole responsibility for decision-making, or there may also be a halfway house where a parent has sole decision-making power over certain issues. In circumstances where there are no specific orders dealing with major long-term issues, a Court may allow the parent with whom the child is spending time to make decisions without any requirement to consult the other parent. In the past, there has been conflict between parents as to what decisions can be made when a child is spending time with each parent.
If an order is made for joint decision-making, the amendments state that the parents must consult each other and make a genuine effort to come to a joint decision.
With the focus now firmly on what is appropriate and safe for the child rather than the entitlements of parents, the Court will consider what arrangements will best promote the safety of the child. Issues the Court will consider include:
- family violence, abuse and neglect of a child;
- any views expressed by the child;
- the developmental, psychological, and emotional needs of the child;
- the capacity of the proposed carer to provide for the child’s needs, bearing in mind that the Court must also be mindful of the benefit of a child maintaining a relationship with both parents; and
- if the child is Indigenous, then the child’s right to enjoy connection with family, community, culture, country, and language.
The amendments will inevitably lead to more litigation, with parents asserting that equal time is not appropriate. Parents who already have existing orders may also see this as a chance to apply to the Court to reconsider the order under the new regime. However, the changes to the Act also state that a Court has to consider if there has been a significant change in circumstances and whether it is in the child’s best interests for the order to be reconsidered.
The Court now has the power to make a “harmful proceedings” order, which will stop one party from commencing proceedings against the other without leave of the Court. This would apply in situations where a child who is the subject of the proceedings may suffer harm if the proceedings are allowed to be instituted.
The changes to the Act firmly put the decision-making back in the hands of the Court to determine in each case where the responsibility lies for parenting issues, but the paramount consideration will always be the best interests of the child.