In 2006, changes to the Family Law Act introduced a “presumption of equal parental responsibility.” Parental responsibility refers to the decisions for children relating to their care, welfare, and development. The presumption that this decision-making would be equal meant that there was an expectation that both parents would be participating in those decisions when separated, notwithstanding that during their relationship, one or the other parent was often mainly responsible for those decisions and that communication and cooperation is frequently much more difficult after separation.
In cases with high conflict, domestic violence, substance abuse, or mental health issues, both parents were trapped in an arrangement that forced ongoing contact unless the Court decided otherwise.
As lawyers, we repeatedly saw the hardship that this caused some clients. On the flip side, forcing an unwilling parent to participate in the decision-making was difficult. It was often even more challenging to prevent a parent from making decisions unilaterally. In many ways, the presumption had the effect of increasing the conflict between the separated parents. Almost without fail, if there is conflict between parents, that conflict will negatively impact the children they are trying to care for.
Roll on 2023, and after the final report from the Australian Law Reform Commission, “Family Law for the Future – An Inquiry into the Family Law System” from March 2019, the Government has passed legislation to change to the Family Law Act, which, amongst other things, will remove reference to the presumption of equal parental responsibility from the Act. If you have issues with how your family law children’s Orders work, then now might be a good time to check how the changes might affect you and benefit your children.