The Removal of the Presumption of Equal Shared Parental Responsibility
The Presumption of Equal Shared Parental Responsibility
The presumption of equal shared parental responsibility was a fundamental principle of family law, prescribed by legislation under section 61DA of the Family Law Act 1975 (Cth) (“the Act”). In accordance with Section 61DA, the Court presumed that it was in the best interests of the children for both parents to share responsibility for making decisions regarding the major long-term issues of the child jointly. Such major long-term decisions include education, health, religion, cultural upbringings, name and living arrangements. While this presumption of equal shared parental responsibility could be rebutted in limited circumstances (robust evidence of domestic violence, sexual abuse or child neglect) it often delayed the legal process, increased stress and caused significant confusion. Further, many parents erroneously assumed that equal shared parental responsibility also meant equal time with their children.
The Removal of the Presumption of Equal Shared Care Responsibility
However, following the Australian Commonwealth Parliament passing the Family Law Amendment Act 2023 (October 2023), Australia’s family law system has undergone one of its most significant reforms. As a result, on 6 May 2024, significant legislative amendments were introduced to the Family Law Act 1975 (Cth) (“the Act”), the most notable being the removal of Section 61DA presumption of equal shared parental responsibility.
Having now abolished the presumption, the Court now has more flexibility with respect to making parenting orders, in particular parental responsibility. This change brings major implications to the family law system, with the Court no longer being forced to shape parenting orders around the presumption of equal shared parental responsibility. The court now has wider decision-making power, putting the safety and best interests of the children, as well as practicality, at the forefront of its decision making. Ultimately, it is not presumed that it is in the children’s best interest for parents to share responsibility for parental decision making. Instead, the Court will make a decision on a case-by-case basis and recognises that there is not a “one size fits all” when it comes to making parenting orders.
Parental Responsibility vs Care Arrangements
Often, parents confuse parental responsibility with care arrangements. Parental responsibility is about the major long-term decision-making, not the day-to-day care of the children. Major long-term decision making relates to the child’s education, health decisions, religious and cultural upbringing, the child’s name and living arrangements. Day-to-day decision making is the responsibility of each parent when the child is in their care. When the child is in a parent’s care, they do not need to consult the other parent when making decisions that are not major long-term decisions.
Care Arrangements or “Time Spent” with the Child
Care arrangements, or “time spent” orders relate to the child’s living arrangements – where the child lives, and how much time they spend with each parent. For example, will the child live primarily with one parent, and spend time with the other? Or will the child live with each parent equally (such as one week on, one week off). So how do the concepts of parental responsibility and time spent interact with each other?
As an example, a Court may make an order that one parent has sole parental responsibility (they can make decisions for the major long-term issues relating to the child without consulting the other parent), however the parent without parental responsibility will still spend significant time with the child. As a second example, a Court could order that both parents are jointly responsible for the major long-term decision making, however the child is to live primarily with one parent. Alternatively, a Court can make an order that the parents have joint parental responsibility for some issues and grant sole parental responsibility to one parent for others.
Understanding the difference between parental responsibility and time spent is crucial. Even where a parent has significant time with a child, they may still have no legal authority to make major long-term decisions for the child.
The removal of the presumption of equal shared parental responsibility under section 61DA of the Family Law Act 1975 (Cth), represents a significant change in the way the Courts make parenting orders, moving away from a rigid legal framework and an outdated presumption, towards a more child-focused approach that gives consideration to safety and the best interests of the child.
At Easton Legal, we offer expert legal support across a range of practice areas. Whether you’re dealing with serious charges and need experienced criminal defence representation, seeking compensation for harm through our personal injury services, or navigating complex real estate matters with our property law team, our dedicated professionals are here to guide you every step of the way.