What are the changes to “Equal Shared Parental Responsibility”?
One of the most significant family law changes in Australia has been the removal of the presumption of equal shared parental responsibility. These changes came into effect in May 2024 and continue to shape parenting arrangements across the country.
One of the difficulties with the presumption was that too often parents thought that this meant that the court would make orders for equal shared care arrangements. If it was safe and practical to do so, the court would consider the child or children spending if not equal, significant time with each parent.
Additionally, there was a list of over a dozen factors which the court needed to consider in framing orders that would be in the best interests of the children.
2024 Amendments to Equal Shared Parental Responsibility
Removing the Presumption of Equal Shared Parental Responsibility
Since the 2024 amendment to the Act, there are now only half a dozen main considerations to taken into account in assessing what is in the best interests of the child or children:
• What arrangements would promote the safety of the child and each person who has care of the child, (including safety from family violence, abuse, neglect or other harm);
• Any views expressed by the child;
• The developmental, psychological, emotional and cultural needs of the child;
• 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;
• 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; and
• Anything else that is relevant to the particular circumstances of the child.
In the case of Aboriginal and Torres Strait Islander children there are additional considerations in light of specific needs and cultural matters that are important in framing suitable orders.
Changes to Equal Shared Parental Responsibility and Family Violence
Prior to the 2024 amendments, violence was one of the primary considerations the Court would traverse before assessing any time a child would spend with either parent.
Family violence is no longer a primary consideration. However, safety for all parties, the well-being of the children and protection from violence in all its forms remains at the heart of any parenting order.
The Act provides for the courts to consider the impact of family violence and emphasises safety as an important proviso for making any orders.
Additionally, the Act has introduced the definition of ‘companion animals’, the family pets and how they should be treated within family law disputes. The role of pets within the family dynamic can have a significant impact on the wellbeing of the children.
Case Law
As the amendments are comparatively recent, there are not a lot of decisions to show how these equal shared parental responsibility changes will play out in court.
However, there is a long history of case law in relation to family violence which can indicate what the Courts will take into account when assessing the best interests of the children.
Next Steps
If you have any questions or concerns about your situation, please contact us now so that we can advise you the best way forward for you and your family.
This article is for information purposes only and should not be relied on for legal advice.
