On 7 May 2024, amendments to the Family Law Act 1975 came into effect which updated the legislation about how parenting matters are dealt with by the family law courts.
One of the major changes to the legislation includes the abolition of the presumption that both parties will equally share parental responsibility, with a stronger focus on safety of both a child and a parent.
These amendments have caused some controversy, and it will remain to be seen whether the effect of the legislation will "wind back the clock" to deprive children from spending extended time with a parent due to allegations of family violence, whether current or historical.
Previously, the starting point was for an order that parents equally share parental responsibility, meaning they need to agree about decisions relating to major long-term issues for a child.
This presumption also required consideration of whether children spending equal time, or alternatively, significant and substantial time, was in a child's best interests. This presumption did not apply where there has been family violence or abuse.
The new legislation, instead of requiring parents to make decisions together as a starting point, provides that parents are to be encouraged to make a genuine effort to come to a joint decision, "where it is safe to do so", again putting safety for both the parent and children at the forefront.
The impact on removing the need for parents to agree on major decisions, and whether this may potentially increase litigation where parents cannot agree, or proceed to make decisions alone, in attempts to undo decisions made without consultation, is yet to be seen.
In an era where, in most families, both parents are working and share the care of their children, there is a strong desire to ensure decisions are jointly made.
Given the amendments to the legislation, and the removal of the presumption of equal shared parental responsibility, it is important, when entering into parenting orders, to ensure that clear requirements are included in orders. This avoids a situation where one parent, after separation, will take it upon themselves to be sole decision-maker, and the other parent having to take steps to undo these. Once orders are made which do not include these carefully worded requirements, it is not an easy task to vary these without agreement.
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