Equal Shared Parental Responsibility Is No Longer Presumed:

What Parents Need to Know

By Katie Chan

Changes to Australian family law have removed the presumption of equal shared parental responsibility.

Here’s what that means for parents making parenting arrangements after separation.

Australian family law changed significantly on 6 May 2024, including changes to the way courts approach parental responsibility and parenting arrangements.

One of the most important changes was the removal of the presumption of equal shared parental responsibility.

The change has caused some confusion. In particular, it does not mean that parents can no longer share responsibility for important decisions about their children. Nor does it mean that one parent will automatically have sole decision-making responsibility.

Instead, the legislation is intended to keep the focus on the individual child and the parenting arrangements that are in that child's best interests.

What was the presumption of equal shared parental responsibility?

Before 6 May 2024, section 61DA of the Family Law Act 1975 required a court, when making a parenting order, to apply a presumption that it was in the child's best interests for the parents to have equal shared parental responsibility.

Parental responsibility concerns the duties, powers, responsibilities and authority that parents have in relation to their children.

Importantly, even under the former law, equal shared parental responsibility did not mean that a child was automatically required to spend equal time with each parent. The former legislation expressly distinguished parental responsibility from the amount of time a child spent with each parent.

This distinction was not always well understood.

What changed on 6 May 2024?

The Family Law Amendment Act 2023 removed the presumption of equal shared parental responsibility.

It also removed the former provisions that, in certain circumstances, required the Court to consider whether a child spending equal time, or substantial and significant time, with each parent would be in the child's best interests and reasonably practicable.

The Court now determines parenting arrangements by applying the current parenting framework in the Family Law Act, with the best interests of the child as the paramount consideration.

The amendments were intended, among other things, to simplify the parenting framework and address misunderstanding that parents had an entitlement to equal time with their children.

Does this mean parents no longer share parental responsibility?

No.

The removal of the presumption does not prevent parents from sharing parental responsibility or making important decisions together.

Under section 61C, each parent of a child under 18 generally has parental responsibility for the child, subject to any applicable court order.

The important change is that this does not create a presumption that the Court must apply when deciding what parenting order to make.

A parenting order can provide for joint or sole decision-making about all or particular major long-term issues concerning a child.

What are “major long-term issues”?

Major long-term issues are decisions of a long-term nature concerning a child's care, welfare and development.

They can include matters relating to:

• education;
• religious and cultural upbringing;
• health;
• the child's name; and
• changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

These are different from ordinary day-to-day decisions made while a child is spending time with a parent.

The current Act specifically provides that a person spending time with a child will generally not need to consult another person about decisions that are not major long-term issues, such as ordinary decisions about what the child eats or wears.

Can the Court still order joint decision-making?

Yes.

The Court can make a parenting order providing for joint decision-making about all or specified major long-term issues.

Where such an order is made, the people given joint decision-making responsibility are generally required to:

• consult each other about the relevant decision; and
• make a genuine effort to reach a joint decision.

Alternatively, depending on the circumstances and the child's best interests, the Court can order that one person have sole decision-making responsibility for all or particular major long-term issues.

There is no longer a statutory presumption requiring the Court to start from one particular arrangement.

Are parents expected to consult each other if there is no Court order?

The current Act encourages parents, where it is safe to do so and subject to any court orders, to consult each other about major long-term issues affecting their child.

When doing so, parents are encouraged to have regard to the best interests of the child as the paramount consideration.

The words “if it is safe to do so” are important. Family violence, abuse and other safety concerns may significantly affect what arrangements are appropriate.

Is there a presumption of 50/50 time?

No.

There is no presumption that children should spend equal time with each parent.

In fact, there was not an automatic presumption of 50/50 time under the former legislation either.

The former law created a presumption concerning parental responsibility, not equal time. However, where the former presumption applied, additional provisions required the Court to consider equal time and then substantial and significant time in particular circumstances.

Those associated provisions were repealed as part of the 2024 reforms.

The amount of time a child spends with each parent is therefore determined according to the circumstances of the particular child and what arrangements are in their best interests.

How does the Court decide what is in a child's best interests?

The 2024 reforms also simplified the factors the Court considers when determining a child's best interests.

Under the current section 60CC, the Court considers matters including:

• what arrangements would promote the safety of the child and each person who has care of the child;
• any views expressed by the child;
• the child's developmental, psychological, emotional and cultural needs;
• the capacity of each proposed carer to meet those needs;
• the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
• anything else relevant to the child's particular circumstances.

There are additional considerations concerning an Aboriginal or Torres Strait Islander child's right to enjoy their culture. The child's best interests remain the paramount consideration.

What role does family violence and safety play?

Safety is an important part of the current parenting framework.

When considering arrangements that would promote the safety of a child and their carers, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with relevant family violence orders.

Accordingly, joint decision-making will not necessarily be appropriate simply because both people are the child's parents.

The circumstances of each family must be considered individually.

What happened to existing parenting orders?

The reforms did not automatically cancel parenting orders that were already in place.

The transitional provisions applied the new parenting framework to proceedings commenced on or after commencement and generally to proceedings commenced earlier but not finally determined, subject to an exception where a final hearing had already commenced by 6 May 2024.

Parents with existing final parenting orders should continue to comply with those orders unless they are varied, discharged or otherwise cease to operate.

If circumstances have changed and you are considering seeking different parenting arrangements, legal advice should be obtained about the existing orders and the requirements for seeking to change them.

What do the changes mean for separated parents?

The practical effect of the reforms is that parents should avoid approaching parenting arrangements on the basis that either parent has an automatic entitlement to 50/50 time, equal time or a particular allocation of decision-making responsibility.

Instead, the focus should be on the individual child, including their needs, safety, circumstances and the arrangements that will best promote their welfare and development.

Parents can still reach agreements that involve substantial or equal time and joint decision-making where those arrangements are appropriate.

The important point is that there is no statutory presumption requiring that outcome.

Do parents still need to try Family Dispute Resolution?

Generally, parents who want to apply to the Court for parenting orders must first make a genuine effort to resolve their dispute through Family Dispute Resolution, unless an exemption applies.

Exceptions can include circumstances involving family violence, child abuse, risk or urgency.

Parents who are able to reach agreement may document their arrangements in a parenting plan or, where appropriate, apply for consent orders.

Getting advice about parenting arrangements

The removal of the presumption of equal shared parental responsibility has changed an important part of the legal framework, but it has not removed the ability of parents to share responsibility or for children to spend significant time with both parents.

What matters is whether the proposed arrangements are appropriate for the particular child and are in their best interests.

Obtaining legal advice early can help separated parents understand how the current law applies to their circumstances and avoid relying on outdated assumptions about parental responsibility or equal time.

Speak with a Gold Coast Family Lawyer

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solicitor throughout your matter.

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