A quick guide to the repeal of equal shared parental responsibility

Written by Samira Friis, Associate at Watts McCray Lawyers.

In a significant legal development, the Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023 were passed by the Australian Parliament on 19 October 2023.

The changes include new laws about how the Courts will make parenting orders in the best interests of a child.
Most of the changes to the Family Law Act commenced on Monday 6 May 2024.

1. Repeal of “Presumption of Equal Shared Parental Responsibility”

Among these amendments, one of the most critical changes is the repeal of the “Presumption of Equal Shared Parental Responsibility” provisions.

Prior to the commencement of the new laws on 6 May 2024, the Family Law Act had mandated that, when formulating a parenting order, the Court must consider specific principles outlined in the Act, characterised by 2 primary considerations and 14 additional considerations. The new changes involve replacing this convoluted framework with a streamlined list of 6 considerations, augmented by an additional factor for Aboriginal or Torres Strait Islander children.

Key among the old principles was the presumption of equal shared parental responsibility. This presumption formed the foundation for decisions related to the child’s right to care from both parents, the right to spend time and communicate with both parents, and the collaborative participation of both parents in making major long-term decisions for the child.

However, this presumption was not absolute and could be rebutted in certain circumstances. For instance, if there were reasonable grounds to suspect child abuse or family violence, or if it was deemed not in the child’s best interests, the Court had the discretion to deviate from the presumption.

The new legislation overhauls the parenting order framework, eradicating the presumption of equal shared parental responsibility.
While family violence is no longer be a primary consideration, it remains a crucial factor alongside a streamlined list of considerations. Notably, “safety” takes precedence over “protection” under the new law. Similarly, obtaining sole parental responsibility orders in cases of family violence is anticipated to become more feasible.

The removal of the reference to “significant and substantial time” may pose challenges for parents and carers seeking agreement outside of Court. These amendments purportedly offer greater clarity on modifying existing parenting orders, but significantly, they seek to remove a crucial yardstick but also risk tilting the scales.
In practice, the concept and definition of substantial and significant time provided a useful standard of measurement for parties and professionals. There was a body of case law in which Courts had made orders which provided for the non-primary carer parent to have substantial and significant time. The phrase provided a degree of certainty and consistency in the determination of parenting cases and therefore informed the advice lawyers were able to provide to their clients.

The repeal of the “Presumption of Equal Shared Parental Responsibility” provisions not only reshapes the criteria for parenting orders but raises concerns about its broader impact, particularly in cases involving alleged family violence. Navigating these changes will undoubtedly demand a nuanced understanding of the evolving legal framework. However, the removal of this presumption introduces a sceptical and potentially regressive element, prompting questions about how the best interests and safety of children, as well as genuine victims of family violence, will be prioritised in the shifting landscape of family law proceedings.

The refinement of criteria for determining the “best interests” of the child may inadvertently weaponise family violence allegations, setting parties on an evidence-gathering frenzy on issues that more often than not occur behind closed doors with limited or, commonly, no witnesses. One can argue that this might allow the victims to potentially manipulate the legal process to the detriment of genuine victims.

On the other hand, the elimination of the presumption of equal shared parental responsibility could be a positive change for victims of family violence, alleviating pressure to agree to arrangements that arguably compromise safety and allow “control” by the perpetrators of family violence.

2. Information Sharing Bill

The introduction of the Information Sharing Bill aims to enhance access to crucial information from state and territory family violence and child protection systems during family law proceedings.

The said changes involve creating a new subdivision within the parenting section of the Act to establish an improved information-sharing scheme aligned with the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. This updated information-sharing scheme replaces the old s 69ZW with two distinct types of information-sharing orders, namely orders for particulars of documents and orders for documents or information. It also expands the range of information that can be sought through these new information-sharing orders, recognising the intricate nature of family violence, child abuse, and neglect risks.

The Information Sharing Act could mark a significant step toward improving the efficiency and effectiveness of family law proceedings.

Other amendments

Another modification involves eliminating a direct mention of grandparents. The previous version of the Family Law Act 1975 recognised that, as long as it is in their best interests, a child has the right to spend time and communicate with their parents, and other people important to them, such as grandparents, relatives, and members of extended families.

The reference to grandparents was inserted after much lobbying by community organisations representing grandparents. Grandparents may also feel that their role has been diminished and the rights of children to have a relationship with their grandparents are disregarded with the simplification of the new Act.
Lastly, another change is the inclusion of statutory provisions surrounding “re-opening” a case.

So far, the circumstances when the Court may discharge, vary, or revive existing final parenting orders have been predominantly guided by the leading case of Rice & Asplund (1979).The new law codifies the principles enunciated in Rice & Asplund, that is, in considering whether to allow a new application, consideration should be given as to whether there has been a change of circumstances that, in the opinion of the Court, is significant; and whether it is safe and in the best interests of the child for the order to be considered. The rule reflects the view that constant re-litigation of parenting arrangements is generally not in the best interests of the child.