There were a number of amendments made to the Family Law Act 1975 which came into effect on 6 May 2024.
For parenting, two major areas of change relate to parental responsibility and time.
What has changed for parental responsibility?
The amendments have removed Section 61DA, which provided that there was a presumption of equal shared parental responsibility for major long-term issues, with the exception of the presumption not applying if there was family violence. Where the presumption applied, parents were required to come to joint decisions about major long-term issues for their child/ren under Section 65DAC (which has also been removed).
Section 61C remains, which provides that, subject to a Court Order saying otherwise, each parent has parental responsibility for their child/ren. The section has been amended to remove reference to the previous section 61DA.
Section 61D has been amended to include sub-paragraph (3), which provides that the Court can make an Order to allocate parental responsibility for major long-term issues as joint or sole decision-making.
There has been an inclusion of Section 61DAA, which provides that if there is an Order for joint decision-making on major long-term issues, the parents are required to:-
- Consult with each other about decisions to be made; and
- Make a genuine effort to come to a joint decision.
In the absence of an Order dealing with parental responsibility for major long-term issues, then the new section 61CA applies, which provides that where it is safe to do so, parents are encouraged to:-
- Consult with each other about major long-term issues; and
- In consulting with each other, have regard to the best interests of their child/ren as the paramount consideration.
The take away from the amendments is that, where safe to do so, there is still an obligation on parents to consult with each other about major long-term issues for their child/ren and make decisions in the best interests of their child/ren.
For decisions that are not major long-term issues, Section 61DAB has been added, which provides that there is no need for parents to consult with each other about matters that are not major long-term issues.
What do the changes mean for current Orders which provide for equal shared parental responsibility?
The amendments do not affect current Orders which provide that parents have equal shared responsibility for major long-term issues, meaning that parents subject to such an Order are still required to make joint decisions about major long-term issues.
What about time arrangements?
Section 65DAA has been removed, which provided that where there was equal shared parental responsibility for major long-term issues, the Court was required to first consider an equal time care arrangement and whether it was in the best interests of the child/ren and reasonably practicable; if not in the child/ren’s best interests or reasonably practicable, the Court was required to consider “significant and substantial” care arrangements.
There has not been any inclusion of a specific section to replace the previous section 65DAA or set out a framework for consideration of care arrangements in terms of time. The effect is that the Court will be required to consider each case based on the facts and apply the “best interests” principles to determine what care arrangements to order.
Section 60CC continues to detail consideration for what is in the best interests of children. This section has been amended so that the list of considerations has been condensed into a shorter list. These considerations are:-
- Promotion of safety for the child/ren and each person who has care of the child/ren;
- Views expressed by the child/ren;
- Developmental, psychological, emotional and cultural needs of the child/ren;
- Capacity of carers to provide for the needs of the child/ren;
- Benefit of the child/ren having a relationship with the child/ren’s parents and other persons significant to the child/ren;
- Any other relevant matter;
- The child/ren’s right to enjoy their Aboriginal or Torres Strait Islander culture.
What do the changes mean for current Orders which provide for equal time arrangements?
The amendments do not affect current Orders and the time arrangements pursuant to those Orders, meaning that time arrangements for child/ren are to continue in accordance with current Orders.
Can Orders be changed?
There has been inclusion of Section 65DAAA, which provides that where there are current Orders, a Court cannot look to make new Orders unless there has been a “significant change in circumstance” and it is in the best interests of the child/ren that the Court considers making new Orders.
The inclusion of Section 65DAAA is to essentially include in the legislation the law that already applied under the decision of Rice & Asplund.