The presumption that it is in a child’s best interests that after a family break-up parents have equal shared responsibility for major decisions affecting their children has been the cornerstone of Family Law in Australia. However, that could be about to change, as the RMB Lawyers Family & Relationships Law Division explains proposed amendments to the Act:
The Family Law Amendment Bill 2023 is currently before the Senate, following its Second Reading debate in September, but what is it actually amending?
Among the amendments, one of the most significant is the proposed change to the presumption of equal shared parental responsibility, and the impact that has on how a child spends time with a parent.
Under the Family Law Act, “parental responsibility” in relation to a child means all the duties, powers, responsibilities, and authority which, by law, parents have in relation to children. Generally parental responsibility, and its allocation, relate to decision-making for major long-term issues for children, including the location that they live in, their schooling, religious observances, major medical treatment, and other major issues.
Under the Act, the starting position in parenting matters is a presumption that it is in a child’s best interests that parents have equal shared parental responsibility for these issues.
This means that parents are required to come to a joint agreement as to major long-term issues for a child.
There are further flow-on effects from that presumption, the most important being that, where the presumption of equal shared parental responsibility applies, the Court must consider whether the child spending equal time with each parent would be in the child’s best interests.
This does not mean that a Court must order that a child spend equal time with each parent, but that the Court must consider that arrangement. If the Court considers that equal time is not in the best interests of a child, the Court must then consider whether the child spending substantial and significant time with each parent is in that child’s best interests.
The Amendment Bill seeks to remove the presumption of equal shared parental responsibility, and with it, the requirements for Courts to then consider the implementation of an equal time arrangement or a substantial and significant time arrangement.
In considering both the allocation of parental responsibility, and care arrangements for children, the Court and parties, will be required to consider the appropriateness of any arrangements through the lens of what is in the child’s best interests.
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