The passing of the most recent Family Law Amendment Act on 19 October 2023 brings significant changes to the current legislation. These changes will be applied from the 6 May 2024.
The Presumption of Equal Shared Responsibility
Under the current framework
The current framework under section 61DA provides that both parents have equal shared parental responsibility (ESPR) of the children. In simple terms, equal shared parental responsibility means that both parents have the equal right to jointly make long term decisions in relation the children.
When the court is determining an order, they take into consideration of the presumption of ESPR. If a court makes an order for equal shared parental responsibility pursuant to section 65DAA, it must also consider making an order for equal time if it is in the best interests of the child and reasonably practicable to do so.
This presumption of equal shared parental responsibility does not apply if the Court is satisfied that it is not in the child’s best interest due to risks of family violence.
Under the new framework
The new legislative framework removes the presumption of equal shared parental responsibility, and the allocation of parental responsibility will be made on what is in the child’s best interest which may be for joint decision-making or sole decision-marking or may also provide for a parent to have sole parental responsibility for specific major long-term decisions and joint decision making for the remainder of long-term decisions.
If the Court makes an order for joint decision about any issue, then under the new section 61DAA both parents will be required to:
- Consult with each person with joint responsibility in relation to each such decision; and
- To make a genuine effort to come to a joint decision.
The amendments specially provide that any other person is not required to establish that there has been a joint decision, before acting on a decision communicated by a person with decision-making responsibility.
The amendments also make it clear that pursuant to section 61DAB that parents are not required to consult with each other regarding decisions that are not major long-term issues if the child is spending time with that parent.
If you need assistance in relation to your parenting matter, please do not hesitate to contact our office to make an appointment.