On 6 May 2024, new parenting amendments were made to the Family Law Act. This blog discusses two of the significant changes made, namely removal of the presumption of equal shared parental responsibility and the revised ‘best interests’ considerations.

Parental Responsibility

There is no longer a presumption of ‘equal shared parenting responsibility.’ The new amendments provide that a parenting order allocating responsibility for making decisions about major long-term decisions may be for:

1. Joint decision-making; or
2. Sole decision-making; or
3. Sole parental responsibility for particular issues, and joint decision-making for the remaining major long-term issues.

Once parenting orders are made, there is no requirement for parents to consult with each other regarding non-major decisions whilst in the other parent’s care.

The amendments specifically provide that third parties, for example schools and medical practitioners, do not need to check who has decision-making responsibility. Third parties are not required to establish that there has been a joint decision before acting on a decision communicated by a person with decision-making responsibility. This is something to be mindful of if you are concerned the other parent may seek to unilaterally enrol your children in a school, apply for a passport or seek medical treatment without your consent. You should seek immediate legal advice if you have such concerns.

Spend Time Arrangements for Children

The Court will make orders for spend time arrangements with parents by first considering the objects of the Act, namely:

(1) to ensure that the best interests of the children are met, including by ensuring their safety and

(2) to give effect to the Convention on the Rights of the Child.

The Court will then consider the following general ‘best interests’ considerations:

1. What arrangements would best promote the safety (including safety from family violence, abuse, neglect or other harm) of the child and each person who has care of the child,
2. Any views expressed by the child,
3. The developmental, psychological, emotional and cultural needs of the child,
4. The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring,
5. The benefit to the child of being able to have a relationship with both parents, and other significant people, where it is safe to do so, and
6. Anything else relevant to the child.

There are also two further ‘best interests’ considerations relevant to Aboriginal or Torres Strait Islander Children.

The major focus of the Court in making parenting orders will be on the assessment of ‘risk’ and ‘promotion of safety’ for children. Greater weight is not given to one specific consideration. The above considerations will be considered based on the issues and evidence presented by the Court about each particular case.

It is important to be aware that there is no presumption of ‘equal time’ or ‘meaningful relationship’. Each case will be determined by the Court on the unique facts and needs of the child in the particular case before the Court.

Should you wish to discuss your family law parenting matter, please contact our family law team at SMR Legal.