The Australian Parliament has recently passed significant changes to the family law system aimed at ensuring that the best interests of children are at the centre of all parenting decisions.
Equal shared parental responsibility
Prior to these reforms, there was a legal presumption in family law cases that both parents had ‘equal shared parental responsibility’ for their children. If the Federal Circuit and Family Court of Australia was asked to make orders about parenting arrangements, it was required to presume that both parents would take an equal role in making decisions about major issues for their children (e.g. schooling, religious practice and medical treatment). The presumption of equal shared parental responsibility could be rebutted (such as if the child was at risk of family violence from one of the parents), in which case the court could make an order for parental responsibility that was in the best interests of the child.
The presumption was criticised during the Australian Law Reform Commission’s 2019 Inquiry into the Family Law System. It was found to have restricted the court’s ability to make the best decisions for each child, focusing too much attention on parents’ interests and making it more likely for parents to agree to inappropriate arrangements out of court because of confusion about the meaning of the presumption. It also put extra pressure on vulnerable people, who had to prove to the court that the presumption should not apply due to family violence.
Removal of presumption
As of 6 May 2024, the presumption of equal shared parental responsibility no longer applies in family law matters. The removal of the presumption means that the court must decide on the allocation of parental responsibility on a case-by-case basis, with the paramount focus being on the best interests of the child.
The court can still make orders for shared parental responsibility and equal time with both parents, if such outcomes are in the best interests of the child. In determining what orders to make, the court must consider six core factors:
- What arrangements would promote the safety of the child and each person who has care of the child.
- Any views expressed by the child.
- The developmental, psychological, emotional and cultural needs of the child.
- The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
- The benefit to the child of being able to have a relationship with their parents, and with other people who are significant to the child, where it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
For Aboriginal and Torres Strait Islander children, the court must also consider the child’s connection to family, community, culture, country and language when determining what is in their best interests.
Conclusion
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 02 9159 9024 or email [email protected].