Amendments to the Family Law Act 1975 came into effect on 6 May 2024. The new
amendments bring forward some changes to the previous family law parenting framework.
The changes mark a streamlined and more child-focused approach to family law. One of
the main changes is the removal of the presumption of equal shared parental
responsibility.
What is parental responsibility?
Parental responsibility refers to duties, responsibilities and major long-term decisions
made by a parent as to the welfare and development of a child.
Some examples of decisions relating to long-term welfare include:
• Schooling.
• Medical decisions.
• Religious or cultural upbringing.
Previous system – Equal Shared Parental Responsibility
Prior to the commencement of the amendments, there was a presumption of equal shared
parental responsibility. This meant that the Court presumed that it was in the child’s best
interests for the parents or primary carers to be required to make joint decisions in relation
to major long-term issues.
If a party was seeking to depart from this presumption, they had to show that such a
departure was in the child’s best interests. This would usually be on the basis that the
child had been exposed to abuse or family violence, and was generally the exception
rather than the norm.
When an order for equal shared parental responsibility was made, the Courts then also
had to consider making an order for equal time, or substantial and significant time.
The wording of equal shared parental responsibility could cause confusion, as everyday
individuals who are not familiar with the terminology used in family law sometimes
assumed that ‘equal shared parental responsibility’ is the same as ‘equal time’.
This common misconception is part of the reason behind the changes to the Court’s
approach to parental responsibility.
New System – Decision-Making Responsibility
Under the new amendments, the presumption of equal shared parental responsibility has
been repealed.
This means that the Court no longer automatically presumes that it is in the child’s best
interests for the parents to be required to make joint decisions. There is now no longer a
requirement for the Court to consider equal time, or substantial and significant time.
Notably, these changes clarify the Court’s position that parental responsibility and
arrangements for where a child lives and how much time a child spends with each parent
should be based on what is in the best interests of the child, which is to be determined on
a case-by-case basis. This allows the Courts to consider the unique circumstances of
each family when determining parental responsibility.
Practical application for parents
Under the new amendments, parents are encouraged to consult with each other in relation
to any long-term decisions which need to be made, with paramount consideration given
to the child’s best interests.
If appropriate, the Court will still make orders in relation to the allocation of parental
responsibility, which can be allocated as joint or sole ‘decision making responsibility on
major long-term decisions’.
In terms of real-life application, the amendments provide that there is no need for any
other person to establish that a joint decision has been made before acting on a decision.
This is particularly relevant for some school-related decisions and medical or health care
professionals.
The amendments also state that it is not required for parents to consult with each other
regarding decisions that are not major long-term issues, if the child is spending time with
that parent.
Please note that this does not mean that either parent automatically has full decision
making power, but rather is intended to encourage parents to come together and make
joint decisions.
It is important to note that even in circumstances where one parent has been allocated
sole decision-making responsibility, there are still some areas where the consent of both
parents is required, unless that area has been dealt with specifically by a Court order. For
example, obtaining passports or name changes.
Previous parenting orders
Should you already have Court orders in place, then those orders remain in full force and
effect.
It is important to note that there are many significant changes that will apply to all new and
existing matters from the commencement date. If you have any queries regarding the new
changes, you should speak to an appropriately qualified family law legal practitioner.
If you or someone you know wants more information or needs help or advice with a family
law matter, please contact our Intake team on (03) 9364 7400 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course
of action.