The Family Law Amendment Bill 2023 has removed the presumption of equal shared parental responsibility

Parental Responsibility

The current regime presumes that equal shared parental responsibility is in the best interests of the child. Parental responsibility is not the same as shared care; rather, it encompasses the powers and responsibility of parents to make decisions relating to the day-to-day care of their children and to major long term issues e.g. education, religion, culture and health.

Equal shared parental responsibility merely means that both parents have responsibility for the care and welfare of their children. This requires the parents to cooperate and communicate with each other to make joint decisions concerning major long-term issues. It enables, however, any day-to-day decisions to be made by whichever parent has care of the children at that time.

The presumption of equal shared parental responsibility will not apply where there are reasonable grounds to believe that a parent has engaged in family violence or child abuse or if it is shown not to be in the children’s bests interests.

Equal Time Orders

If the presumption of equal shared parental responsibility applies, the court must consider whether equal shared custody is appropriate and practicable.

The practicality of equal time arrangements will depend on:

  • Where the parents live and the distance between their homes.
  • Whether the parents have the capacity to communicate effectively and resolve any difficulties which might arise; and
  • How the arrangement will impact the child.

Substantial & Significant Time

Where equal time is not appropriate or practical, an order for substantial and significant time will likely be made, meaning:

  • Time with the children on weekends, holidays and during the week; and
  • Time which allows both parents to be involved in the child’s daily routine.

Sole Custody

A parent will only be granted sole custody where the presumption of equal shared parental responsibility is rebutted. The parent without custody will generally have limited orders for spending time with the children e.g. supervised visitation, or they may have no time at all.

The new regime repeals the presumption of equal shared parental responsibility and the provisions relating to equal and substantial and significant time orders.

The amendment provisions simply provide that the court may make orders which deal with the allocation of parental responsibility for making decisions about major long-term issues in relation to the child and they may make orders which provide for joint or sole decision-making in relation to all or specified major long-term issues.

If an order for joint-decision making is made, the new regime provides that, both parents:

  • consult with the other parent in relation to the decision; and
  • make a genuine effort to come to a joint decision.

But this provision does not require any other person (e.g., a medical practitioner or school) to establish that the decision communicated by one parent was made jointly before they can act on the decision.

The new regime further provides that there is no need for parents to consult about decisions that are made in relation to the child during the time that the child is spending with them on issues that are not major long-term issues.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.