Exploring the recent amendments to the family law act
Understanding parental responsibility
The current regime
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.