Presumption of Equal Shared Parental Responsibility Abolished

The Family Law Amendment Bill 2023 passed both houses of parliament in 2023 and will come into effect in May 2024. It contains a number of significant changes to the laws surrounding parenting orders, as well as giving the courts new powers to obtain and share information with other agencies. One of the most important changes in the Bill is the abolition of the presumption of equal shared parental responsibility. This page outlines that change, why it has been made, and its implications.

What is parental responsibility?

The person or persons who are given parental responsibility for a child are legally responsible for the child. This includes making long-term decisions about the child in matters such as their education, religion and medical treatment. It is what is often thought of as ‘custody’, though that term is not used in Australian family law.

The person who has parental responsibility is not necessarily the person with whom the child lives. The question of who the child lives with is considered separately.    

What is the presumption of equal shared parental responsibility?

The presumption of equal shared parental responsibility is currently contained in section 61DA of the Family Law Act 1975. That provision states that there is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.

The presumption does not apply if there are reasonable grounds to believe that a parent (or someone who lives with them) has engaged in abuse of a child or family violence.

The presumption applies unless the court considers it would be inappropriate to apply the presumption. However, the presumption can be rebutted with evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

How does the presumption operate?

If a court makes an order for equal shared parental responsibility, it must then consider whether it would be in the best interests of the child to spend equal time with each of the parents and whether this arrangement is ‘reasonably practicable’.

If the court makes an order for equal shared parental responsibility but not for equal time, it must then consider whether an order for ‘substantial and significant’ time with each parent would be in the child’s best interests and whether this is reasonably practicable.

If neither of these arrangements is in the child’s best interests, the court may make the orders that are in the child’s best interests.

Criticisms of the presumption

The presumption of equal shared parental responsibility was introduced to the Family Law Act in 2006. It caused a lot of confusion, particularly among unrepresented parties, who often mistakenly believed that the presumption meant that they had to agree to equal shared care of children.

In 2017, the Australian Law Reform Commission reviewed the family law system. The inquiry found a number of problems with the presumption and how it is implemented – including that the process followed is confusing, repetitive, and commonly misunderstood.

Submissions also argued that:

• the presumption gives insufficient weight to the views of the child
• the presumption diverts attention from the primacy of the best interests of the child; and
• that safety needs to be made the overriding priority.

New laws on parental responsibility

Under the new laws, a court may order joint or shared parental responsibility. If a court orders shared parental responsibility, the parents are required to consult with each other about major long-term decisions about the child and to make a genuine effort to come to a joint decision.

The new Act also specifies that parents of a child under 18 are encouraged to consult with each other about major long-term issues about the child and to have the child’s best interests as their paramount consideration when doing so.

Other changes to the Family Law Act

The Family Law Amendment Bill 2023 also changes the factors that must be taken into account when determining what is in the best interests of a child.

While the current Act has two primary factors for the court to consider, and 16 additional factors, the new Act has a single tier of considerations, with two additional matters that courts must take into account if the child Aboriginal or Torres Strait Islander.

The new Act also simplifies the procedures for enforcing family law orders and allows courts to obtain information from government agencies more quickly.  

The new laws come into force on 6 May 2024.

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