By CG Legal Group – Your Trusted Family Law Firm in Brisbane and Sydney
The recent passage of the Family Law Amendment Act on October 19, 2023, marks a significant shift in Australia’s family law landscape, bringing substantial changes to the existing framework established in 2006.
What is Parental Responsibility?
Parental responsibility encompasses the vital duty that parents share in making major long-term decisions concerning a child’s well-being and development. These decisions can range from determining the child’s place of residence, educational institution, important medical choices, their name, and their religious or cultural upbringing.
The Current Regime: Equal Shared Parental Responsibility (ESPR)
Under the current legislation, Section 61DA stipulates that parents should have Equal Shared Parental Responsibility (ESPR). However, it’s crucial to clarify that ESPR doesn’t automatically equate to an equal division of time with the child. This presumption doesn’t apply if there are reasonable grounds to suspect child abuse or family violence. Furthermore, the court can override the presumption if it deems it not in the child’s best interests.
When the court issues an order for equal shared parental responsibility under Section 65DAA, it must consider the possibility of granting equal time if it’s practical and in the child’s best interests.
The interplay between Sections 61DA and 65DAA has led to confusion among parents regarding their ‘rights’ to equal time. This misunderstanding has often prompted parents to engage in negotiations or legal proceedings based on inaccurate assumptions about their entitlements under the Family Law Act 1975.
The New Regime: Emphasis on the Child’s Best Interests
The recent amendments have shifted the focus to the child’s best interests. Parenting orders now allocate responsibility for making decisions about major long-term issues based on what serves the child’s welfare, as determined by the new Section 60CC provisions.
Under the new Section 61DAA, if the court orders joint decision-making on any issue, the parties are obliged to consult and genuinely work together to reach a decision. Notably, these amendments offer clarity, especially for schools and medical/mental health practitioners, by allowing decisions made by a person with decision-making responsibility to be acted upon without necessitating a prior joint decision.
Moreover, Section 61DAB clearly states that parents are not required to consult each other on decisions that aren’t related to major long-term issues when the child is in their care, thereby resolving longstanding disputes about parental rights during such periods.
What to Expect Moving Forward
With these amendments in effect, an uptick in litigation is likely, much like what occurred after the 2006 and 2012 amendments. Parents will seek legal clarity about how these changes apply to their unique family situations. Some may also consider revising older orders if they believe the new legislation better aligns with their circumstances.
While the previous regime consistently prioritized the child’s best interests in determining parenting orders, it remains to be seen if the amendments will significantly alter the outcomes in contested parenting disputes. In theory, court-determined results should not markedly differ under the new regime.
Nonetheless, the removal of references to equal time and equal shared parental responsibility may lead to differences in negotiated outcomes, free from the misunderstandings that previously existed. This shift may initially result in increased litigation as parties can no longer rely on the presumption of ESPR and its associated consequences as a basis for their positions during negotiations.
For expert guidance on family law matters in Brisbane and Sydney, contact CG Legal Group. We are here to navigate these changes and support your unique legal needs, whether related to divorce, child custody, or any family law issue.