Parenting Orders: The Move from Equal Shared Parental Responsibility to Joint Decision-Making

How parents approach making long-term major decisions about their children

Parental responsibility refers to the concept that parents are responsible for making major long-term decisions about the care, welfare and development of their children. Prior to the Family Law Amendment Act 2023, a presumption existed that parents had equal shared parental responsibility. Many presume this is still the case.

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

One intended effect of this change was to make it easier for the Court to decide how to confer parental responsibility by focusing on the best interests of the child.

So, what does this mean in practice?

Outside of Court

The current legal position is that each of the parents of a child who is not 18 have parental responsibility for the child unless there is a parenting order that provides otherwise.

If it is safe to do so, parents are encouraged:

(a)    to consult each other about major long - term issues in relation to the child; and

(b)    in doing so, to have regard to the best interests of the child as the paramount consideration.

Inside of Court

If parents cannot agree on how to make major long-term decisions for a child, the Court now decides each parenting case on its own facts to determine whether to allocate the parents joint decision-making responsibility or one of the parents’ sole decision-making responsibility.

Under section 61DAA of the Family Law Act 1975 (Cth), parents who have joint decision-making responsibility are required to:

• consult the other parent; and

• make a genuine effort to come to a joint decision.

Subsection (2) confirms that section 61DAA “does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly”.

Parents only need to consult on major long-term decisions, not day-to-day decisions that might arise such as whether to take a child for a haircut, or what they are to wear or eat.

The term “major long-term decisions” relate issues about a child’s:

1. education;

2. religious and cultural upbringing;

3. health;

4. name; and

5. changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

Parenting orders may provide for parents to make joint decisions about some major-long term issues but not others. For example, parents might be able to agree on the child’s education, and name but not on about their health. The Court may then make an order for joint decision-making about education and health but for one parent to have sole decision-making responsibility about the child’s health.

When might the Court make an order for Sole Decision-Making Responsibility?

An order for sole decision-making responsibility might be made where one parent exposes the child to an unacceptable level of risk or where they have not been involved in making decisions in the past.

Sole decision-making responsibility means that one parent has the legal responsibility for making major long-term decisions without requiring the other parents’ consent or agreement.

If you are having difficulties making major long-term decisions for your child after separation, R + M Law can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

Parental Responsibility and Best Interests Explained

The passing of the Family Law Amendment Act 2023 has codified considerable changes to the concept of parental responsibility. Parental responsibility has been a central concept in family law matters for some time. It is the responsibility parents have in relation to major long-term decisions about the welfare and development of their child/ren, for example where they live, the school they attend, medical decisions, their name, and religious and/or cultural upbringings.

In 2006, changes to the Family Law legislation saw the introduction of the concept of equal shared parental responsibility, and provided that unless there were reasonable grounds to believe that a parent of the child has engaged in family violence that it would not be in the best interests of the child, that a presumption of equal shared parental responsibility applied. The Australian Law Reform Commission found in its 2019 report that the presumption that separated parents have equal shared parental responsibility for their child/ren was too frequently misinterpreted as a presumption of an equal shared care arrangement. The occurrences of misinterpretation of the law is said to have created a risk of harm to children.

The Family Law Amendment Act 2023 removes this presumption such that each parenting case before the Court will be evaluated on the matter’s specific merits, primarily focusing on the child/ren’s best interests. The Amended Act simplifies the objects of Part VII of the Family Law Act 1975 (Cth) as follows:

1.       To ensure that the best interests of the child are met, including by ensuring their safety; and

2.       To give effect to the Convention on the Rights of the Child.

The Amended Act simplifies the section 60CC factors  - those factors that the Court considers to decide what parenting arrangements will be in the best interests of the child – from the previous and hierarchical primary and secondary factors, to the-now six factors of general considerations and two further considerations if the child is Aboriginal or Torres Strait Islander. These six factors of general consideration are:

1)      What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

a)       the child;

b)      and each person who has care of the child (whether or not a person has parental responsibility of the child); 

2)      Any views expressed by the child;

3)      The developmental, psychological, emotional and cultural needs of the child;

4)      The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5)      The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

6)      Anything else that is relevant to the circumstances of the child.

These simplified and streamlined factors are intended to provide the Court with wide discretion to make decisions which posit the safety of children at the forefront of any arrangement. Parents at all stages of the separation process will need to consider these changes. An understanding of who is able to exercise parental responsibility in relation to what issues, and how and when joint decisions are to be made in relation to children, is an important yardstick to achieving successful parenting outcomes.

The practical impacts of these changes are yet to be seen, and our team of family law experts at Robinson + McGuinness will be closely following the development of jurisprudence in relation to parental responsibility from decisions in both Division 1 and 2 of the Federal Circuit and Family Court of Australia. If you need clarification regarding these latest amendments to the Family Law Act 1975 (Cth) or you would like advice on how they may impact your situation, please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Lauran Clifton