Who Steers the Ship?
2024 Amendments to the Family Law Act and How Parents Make Decisions
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In Australian Family Law, “parental responsibility” means all of the powers and responsibilities parents have in relation to their child. This includes making decisions relating to education, religion, health and living arrangements.
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In a significant move, the Federal Government has recently implemented substantial changes to the Family Law Act, focussing on parenting matters and the question of parental responsibility. These changes came into effect in May this year and they mark a significant departure from the longstanding presumption that parents should have shared equal parental responsibility.
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Since 2006, the presumption of shared equal parental responsibility mandated that, in parenting matters, the Court operated under a presumption that it was in the best interests of a child for both parents to share equal responsibility in those major decisions.
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Aside from the fact that there were many instances where a presumption of shared parental responsibility was not appropriate, this presumption also led to confusion, particularly among parents navigating the Family Court system without legal representation. Many wrongly believed that this meant that equal time spending arrangements with children was mandatory.
That was never the case under Australia law. The concept of parental responsibility and the time a child spends with each parent are two very different things.
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That presumption has now been abolished. Instead, the Court must now tailor parental responsibility Orders based on the unique circumstances of each case and the best interests of the child or children involved. The Court is required to take into account several factors including the safety of the child, child’s preferences, their psychological and emotional needs, the capacity of each parent to meet those needs and the importance of maintaining relationships with other significant people in their lives like grandparents and siblings.
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By removing the presumption, the Court can ensure that parenting arrangements are formulated in a manner that is practical, beneficial and genuinely in the best interests of the child. Most importantly, there is now an emphasis on more nuanced and tailored outcomes for families navigating the complexities and sensitivities of separation and divorce.
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The amendments currently only extend to married couples. However, it is anticipated that Western Australia will pass laws shortly to align the State’s position with the Federal position and by doing so, broaden the application to defacto couples.
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