A quick guide to the repeal of equal shared parental responsibility

In a significant legal development,  both houses of parliament have passed two (2) Family Law Amendment bills, amongst a flurry of other exposure draft bills set to be read and considered in the near future.

These bills, scheduled to replace certain provisions and be integrated into the Family Law Act 1975 in the coming months, mark a significant shift in the landscape of family law parenting matters.

Repeal of Presumption of Equal Shared Parental Responsibility.

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.

The current Family Law Act mandates 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 proposed changes involve replacing this sophisticated framework with a streamlined list of 6 considerations, augmented by an additional factor for Aboriginal or Torres Strait Islander children.

Key among these principles is the presumption of equal shared parental responsibility. This presumption forms 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 is not absolute and can be rebutted in certain circumstances. For instance, if there are reasonable grounds to suspect child abuse or family violence, or if it is deemed not in the child’s best interests, the Court has the discretion to deviate from the presumption.

The proposed legislation aims to overhaul the parenting order framework, eradicating the presumption of equal shared parental responsibility.

While family violence will no longer be a primary consideration, it remains a crucial factor alongside a streamlined list of considerations. Notably, “safety” takes precedence over “protection” in the revised criteria. Under the proposed amendments, 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 provides a useful standard of measurement for parties and professionals. There is a body of case law in which Courts have made orders which provide for the non-primary carer parent to have substantial and significant time. The phrase provides a degree of certainty and consistency in the determination of parenting cases and therefore informs the advice lawyers are 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 legitimate 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 proposed 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 current 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 Bill 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 Family Law Act 1975 recognises 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 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 amendments propose to seek to codify 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.

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