Australia’s Family Law Act 1975 (‘the Act’) provides the framework for deciding parental and financial arrangements when couples separate or divorce. One of the important presumptions within the Act since 2006 has been that of equal shared parental responsibility (ESPR) of children from the relationship. This presumption – which can be rebutted by evidence from either party – represented a shift away from notions of ‘sole custody’ to encourage parents to make joint decisions in the best interests of their children.
But the passing of the Family Law Amendment Act on October 19, 2023 brings a number of significant changes to the Act, with one of the most notable the removal of the presumption of ESPR. The overriding concern in making a parenting order no longer involves ESPR but instead focuses on what is in the child’s best interest, considering six factors (plus two additional ones for Aboriginal and Torres Strait Islander children) including a child’s safety, the child’s own views, the benefit of having relationships with both parents, and the child’s developmental, psychological, emotional, and cultural needs.
This article looks in more depth at this landmark change and what it means for those seeking parenting orders through the Federal Circuit and Family Court of Australia. It’s vital to seek professional legal advice in family law matters, particularly in light of the recent amendments.
More on ESPR and why it has been removed
Under the 2006 framework, there was a strong presumption that it was in the best interests of the child for parents to share equal responsibility for major decisions, such as education, health, religious and cultural upbringing.
Section 61DA of the Act provides for ESPR in parenting matters. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family and domestic violence, and can be rebutted if the court determines it is not in the best interests of a child to apply the presumption. Until the recent amendments, if the Court made an order under this section for ESPR, it was also obligated to consider – under section 65DAA of the Act – whether an order should be made for children to spend ‘equal time’ between separated parents, if it is reasonably practicable and in the best interests of a child to do so.
The result in practice has been confusion for parents, many of whom believed that an order for ESPR also meant they were entitled to equal time with children. This was not the case and often resulted in unnecessary litigation and unrealistic expectations in applying to the Court for parenting orders.
A further motivation for the amendments is acknowledgment of the diverse nature of modern families, ensuring Australia’s family law is more inclusive and accommodating of a range of family structures and dynamics. The additional flexibility the amendments provide allow for a more nuanced and individualised response to each family’s circumstances.
What do the changes mean in practice?
Under the new amendment, the Court may make a parenting order with the flexibility to give one parent the responsibility for making long-term decisions about the child’s upbringing, or it may provide for joint decision-making. An order may also stipulate that one parent has sole responsibility for certain issues related to raising the child, but that major long-term issues require joint decision-making between the parents. The allocation of responsibility for major long-term decisions is to be based on what is in the child’s best interests, as set out in section 60CC of the Act.
When the Court makes an order for joint decision-making about any issue related to the child, the parents are required under section 61DAA to:
- consult each other person with joint responsibility in relation to each such decision; and
- make a genuine effort to come to a joint decision (if it is safe to do so, i.e. family or domestic violence is not present).
Under section 61DAB of the amendments, once an order has been made about parental responsibility for major long-term decisions about a child, the parent the child lives with is not required to consult the other parent about minor, day-to-day issues related to the child’s upbringing.
Similarly, the changes make it clear that third parties involved with the child, such as schools, sports clubs and medical practitioners, for example, do not need to first establish a joint decision has been made about the child if they have communicated with the parent who has decision-making responsibility.
The amendments also formalise the principle first espoused in the case of Rice v Asplund (1979) FLC 90. That is, where a parenting order has been made and one party wishes to vary or set it aside, that party must show that there has been a ‘significant change in circumstances’ relating to the child, and that it would be in the best interests of the child for the final parenting order to be changed.
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The best interests of the child has always been the paramount factor in Court decisions on parenting orders but the concept has additional primacy now that ESPR is no longer in effect. While it’s not expected the amendments will significantly change the nature of parenting orders made by the Court, the changes may lead to some parents seeking an order to be re-opened and varied based on a change in circumstances. Others may undertake new legal action if they are denied joint decision-making responsibility or believe they will see their child less under the new laws.
This is a sometimes difficult and emotionally draining area of the law. If the issues discussed are pertinent to your situation and you need more information or guidance, contact our understanding family law team today for the right advice.