Presumption of “Equal Parenting Responsibility” to be Removed

When hearing your Family Law-related case before a judge, courts will begin by considering the presumption of “equal and shared responsibility”. This means that courts must consider arrangements for the child to spend time with each parent and for each parent to share an equal say in decisions relating to their children.

This was often misconstrued. Rather than the law’s intention for a child to spend a nominated period of time with each parent, it was often misunderstood that each parent had a right to spend the same, equal or a significant amount of time with the child.

As a result, the Family Law Amendment Bill 2023 has been proposed. Simplifying a court’s process to determine Parenting Orders, the Bill aims to place the child’s safety, wellbeing, and best interests at the forefront of any decision made on parenting arrangements.

The Bill proposes the following changes:-

  1. To remove the presumption of “equal and shared responsibility”;
  2. To simplify the list of factors considered when assessing the best interests of the child;
  3. To clarify when an existing parenting order may be reconsidered.

Removing the presumption of “equal and shared responsibility”

According to Section 61DA and 65DAA of the Family Law Act 1975, the court is required to apply a presumption, which says parents must have equal shared parental responsibility for the child – equal or substantial and significant time.

The wording is to be amended to a presumption of “joint decision making on major long-term issues”, as to prevent misinterpretation of “equal time” spent with the child.

This amendment has been proposed with the aim of the child’s best interests being of most importance.

Simplifying the list of factors considered when assessing the best interests of the child.

In abolishing the “equal shared responsibility” presumption, the best interests of the child will be the primary focus. Judges will be required to assess and review the following factors when determining what their best interests entail:-

  • What would promote safety for the child and their carer?
  • What are the views of the child?
  • Are there any developmental, psychological, emotional or cultural needs of the child?
  • What is the capacity of those seeking parental responsibility to attend to the above needs?
  • What is the benefit of the child having a relationship with each parent?
  • Are there any other relevant factors in the particular circumstances?

Clarifying when an existing parenting order may be reconsidered.

The Family Law Act 1975 currently does not specify the circumstances as to when parties may seek revisions on a Parenting Order. Taking this issue into account, the Bill provides the following conditions to revise an existing Order:-

  • An Order must not be reconsidered unless there has been a significant change in circumstances;
  • It is in the best interests of the child for the Order to be reconsidered;
  • Agreement or consent by all parties have been given (reflecting on the idea that continuous litigation is not in the best interests of the child).

More information on the progress of the Bill can be found here.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Freedman & Gopalan Solicitors
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