Navigating the new landscape of family law: Parental responsibility and equal time

December 14, 2023

Exploring the recent amendments to the family law act

The Family Law Amendment Act of 2023 has ushered in a new era in family law, bringing significant changes to a regime that has been in place since 2006. This monumental shift has been met with mixed reactions from legal experts, parents, and stakeholders alike. In this article, we will delve into the key amendments and explore their implications for parental responsibility and equal time in family law matters.

Understanding parental responsibility

Parental responsibility encompasses the obligation parents bear to make major long-term decisions that impact the welfare and development of their child. These decisions encompass crucial aspects of a child’s life, including their place of residence, educational institution, medical treatments, name, and religious or cultural upbringing.

The current regime

Under the previous system, Section 61DA of the Family Law Act stipulated that parents should share equal shared parental responsibility (ESPR). Unfortunately, this provision has often been misunderstood as granting parents an automatic right to equal time with their children. However, the presumption did not apply in cases where there were reasonable grounds to suspect child abuse or family violence. Additionally, the court could override the presumption if it was deemed not to be in the best interests of the child. When the court made an order for equal shared parental responsibility, as per Section 65DAA, it was required to consider equal time arrangements if they were reasonably practicable and in the child’s best interests. This combination of sections 61DA and 65DAA created confusion among parents regarding their rights to equal time. This confusion led to misguided negotiations and litigation based on erroneous assumptions about their entitlements under the Family Law Act.

The new regime

The recent amendments have eliminated the presumption of equal shared parental responsibility, ushering in a new era for family law. The amendments allow for a parenting order to allocate responsibility for major long-term decisions through joint decision-making, sole decision-making, or a combination of the two, depending on what is in the child’s best interests, as determined by the new Section 60CC provisions.

If the court orders joint decision-making on any issue, the parties involved are required, under Section 61DAA, to consult with one another and make genuine efforts to reach a joint decision. Importantly, the amendments explicitly state that any other person does not need to establish that a joint decision has been reached before acting on a decision communicated by a person with decision-making responsibility. This clarification is particularly helpful for schools and medical or mental health practitioners.

The amendments also address a longstanding source of tension by stating in Section 61DAB that parents are not obligated to consult each other regarding decisions that do not fall under major long-term issues when a child is spending time with that parent. This resolves disputes over what a parent can or cannot do while a child is in their care once a court order regarding major long-term decisions has been issued.

The road ahead

The introduction of these amendments is likely to lead to an increase in litigation as parents seek clarity on how these changes apply to their specific family circumstances. Similar trends were observed following the 2006 and 2012 amendments, as parents sought to navigate the evolving legal landscape.

While the new regime emphasizes the paramount importance of the child’s best interests in determining parenting orders, it remains to be seen if these amendments will significantly impact the outcomes of contested parenting proceedings in practice. In theory, court-determined outcomes should not be vastly different under the new system.

Nevertheless, the removal of references to equal time and equal shared parental responsibility may pave the way for more streamlined and accurate negotiations between parents. It may also lead to initial increases in litigation as parties can no longer rely on the presumption of ESPR and the associated consequences under Section 65DAA as the basis for their negotiation positions.

As family law practitioners and parents alike adapt to these sweeping changes, one thing remains clear: the paramount consideration will always be the well-being and best interests of the children involved. The recent amendments to the Family Law Act are just one step in the ever-evolving journey of family law in Australia.

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