The Family Law Act 1975 has recently been amended with effect from 6 May 2024.
The amendments place additional emphasis on safety as well as simplifying and converting to “plain English” the framework in which the court allocates parental responsibility and determines what is in a child’s best interests.
This article discusses what the key amendments mean for schools, focusing on the amendments to parental responsibility and the assessment of the “best interests” of the child.
*Whilst this article refers to “parents” for sake of simplicity, it is noted that by court order a non-parent (including grandparents and other non-parent carers) can be allocated parental responsibility and/or an order made in their favour for a child to live with, spend time with, or communicate with them.
Background
Schools regularly have to navigate complex and separated family arrangements. This can involve the school needing to interpret court orders, parenting plans and letters from the parents’ lawyers.
Not infrequently, the court orders are ambiguous and the school may be confronted with parents arguing about what the orders mean.
All too often, each parent adopts a self-interested interpretation, and, in the absence of a further court ruling, the school is often left in the invidious position of having to make sense of the orders in the context of its legal duties to the student, its contractual arrangements with the parents, and its responsibilities under education regulations. At Moores we regularly advise schools navigating such issues.
The changes to the law resulting from the recent amendments are significant, and we expect that schools will be impacted by matters such as changes in terminology in orders, changes to the content of new orders, and parents misunderstanding the effect of the new laws.
Importantly, at the outset we note that existing court orders will not be affected by the amendments. The amendments will only apply to orders made in cases (including Application for Consent Orders) that are determined by the Court on or after 6 May 2024.
Parental responsibility
Before diving into the key amendments, we will take a moment to provide a refresher on the concept of parental responsibility.
Parental responsibility primarily relates to long-term decision making. It is a separate concept to where the child lives, who the child spends time with, and who the child communicates with.
For example, court orders can provide for a child to live in a shared care arrangement but with one parent having sole parental responsibility. Conversely, the orders can provide for the child to spend limited time with one parent yet still provide for equal shared parental responsibility.
Specifically, parental responsibility is concerned with the making of decisions about “major long-term issues”, which is defined in the Act as meaning:
“…issues about the care, welfare and development of the child of a long – term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Examples of major long-term decisions that are relevant to schools include:
- the student moving schools;
- their participation in non-compulsory religious ceremonies or religious studies;
- decisions around the student’s medication and healthcare, and the student’s name (both formally recorded and how the child is known informally); and
- the student joining an interstate or overseas trip (please note however that specific legislation also applies to international travel).
Examples of non-major long-term decisions (for simplicity, we will refer to these as “day-to-day decisions”, although that terminology is not used in the Act) include:
- consent for local excursions;
- starting music lessons;
- what the child wears on free dress days; and
- ordering from the canteen.
However, the line is not always clear-cut. For example, consider a student ordering food from the canteen, which is ordinarily a day-to-day decision. However, it is not difficult to imagine major long-term issues arising, for example, if the student suffered from allergies, or had received medical advice to adhere to a certain diet due to serious health issues, or if the student’s religion mandated certain dietary requirements.
Types of parental responsibility
If there is no court order in place allocating parental responsibility, the Act provides that by default each parent has parental responsibility for their child, and this can be exercised either jointly (together) or severally (individually). This has not been changed by the removal of the “presumption” of equal shared parental responsibility (explained further below) which only affects cases where a court is making parenting orders.
The family law courts have power to make orders allocating parental responsibility. Most commonly, this will be dealt with in the first order in a suite of parental orders.
Broadly speaking, there are three main ways parental responsibility can be allocated by court orders:
1. Equal shared parental responsibility
In line with the wording of the new amendments, we expect this will likely be referred to as “joint decision-making” in orders made after 6 May 2024**.
Parents who have equal shared parental responsibility are required to consult each other about decisions relating to major long-term issues (see further above) and make a genuine effort to come to a joint decision about such issues.
There is no obligation to consult for day-to-day decisions.
Importantly, the obligation to consult is an obligation between the parents, and any failure by a parent comply with that obligation does not make their unilateral instructions ineffective or unauthorised. This is confirmed by section 61DAA(2), which states:
“To avoid doubt, this section 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.”
Notwithstanding that, when parents are separated and have equal shared parental responsibility, it may still be prudent for schools to endeavour to obtain joint instructions from parents about major long-term issues, depending on the circumstances. Issues also arise when parents who both have parental responsibility give conflicting instructions.
Increasingly, schools are needing to take a more nuanced approach to such issues, particularly where there is also a Family Violence Intervention Order (FVIO) or other form of state-based protection order in place. Whilst it is beyond the scope of this article to discuss such cases, we note that there is a complex interaction between FVIOs and family law orders, and which order prevails requires a case-specific analysis. In addition, the school has an independent duty of care to it students and staff – and a duty to protect health and safety so far as is reasonably practicable under OHS laws – which also need to be taken into account in addition to considering what is provided for by the orders.
This can and does mean that schools need to exercise an independent assessment of risk and make a decision. Seeking to ignore court orders, or taking no action, may not be sufficient to discharge the duty. And taking no action because there are no court orders may also be insufficient, as the exercise of the duty of care requires independent judgment. It is also not acceptable to expect parents in the context of family violence to “sort it out”, particularly as encouraging contact might be a breach of the order and could endanger family members.
2. Sole parental responsibility
In line with the wording of the new amendments, we expect will likely be referred to as “sole decision-making” in orders made after 6 May 2024**.
When the court orders allocate sole parental responsibility to one parent, it has the effect of making that parent solely responsible for making major long-term decisions. The other parent is however still able to make day-to-day decisions for the child whilst in their care.
Some orders specify that a parent with sole parental responsibility must still inform the other parent of their decision. This is an obligation between the parents and does not create an obligation on schools to inform the other parent of the relevant decision.
3. Hybrid parental responsibility
A hybrid order allocates sole parental responsibility to one parent in relation to defined matters, with all other matters being subject to equal shared parental responsibility.
**Pending any emerging case law, we presume that the difference between the terminology “decision-making” and “parental responsibility” is largely semantic and in line with the policy of the new amendments to adopt a plain English approach, particular in court orders. The concept of “parental responsibility” still remains in the Act as amended, however we expect to see the terminology “decision-making” used more commonly in court orders.
Removal of the presumption of equal shared parental responsibility
Perhaps the most important change brought in by the new amendments is the removal of the presumption of equal shared parental responsibility.
The presumption meant that when making a decision about parental responsibility, the court’s default position was to order equal shared parental responsibility unless a specified reason applied. Whilst family violence, child abuse, and the best interests of the child were all reasons by which the court could not apply the presumption, in practice sole parental responsibility was the exception rather than the rule.
The new law now means that the court will make a decision about parental responsibility based on the child’s best interests alone, with no “default” position. We expect that this will have two main consequences:
- More contested cases in which the court allocates sole parental responsibility or makes a hybrid order – although we are awaiting emerging case law on the topic;
- More cases where parents who apply for Consent Parenting Orders (whether arising from out-of-court negotiations or in resolution of court proceedings) agree to sole parental responsibility or hybrid orders; and
- Overall, an increase in the proportion of cases where hybrid orders are made, including cases where “education” is specified as a matter about which one parents exercises sole decision-making. This could be a boon to schools currently facing conflicting parent decisions!
Again, we note that in a situation where there are no court orders in place in relation to parental responsibility, the law remains the same that both parents have parental responsibility, which can be exercised by them either jointly or individually.
Changes to consideration of time arrangements
As part of the amendments, sections of the Act have been also repealed that provided that when the Court made orders for equal shared parental responsibility, that it had to consider whether an order for “equal time” or “substantial and significant time” was in the child’s best interests and reasonably practicable.
These provisions had been misunderstood by many members of the community as creating a right for parents to spend equal time with their children, which was never the intention.
It is now abundantly clear that parenting arrangements are determined by a court having regards to the “best interests” of the child as the most important consideration, and that there are not any other starting points or presumptions.
We expect that this will have the consequence that there is likely to be a greater diversity in the content of the orders made after 6 May 2024.
In particular, for the past nearly two decades, a very common type of arrangement outside of shared care arrangements was for the non-residential parent (more commonly, though not always, the father) to spend time with the child on alternate weekends with perhaps another night in the off-week, along with half of school holidays and special occasions. This reflected the concept of “substantial and significant time” in the Act.
This concept sometimes worked in favour of the “spend time” parent, for example there was often a good argument that “substantial and significant time” was the “baseline” when parents lived in proximity and there were no significant risk issues. At the same time, in many cases, the “spend time” parents found it difficult to negotiate more time once the residential parent offered the bare minimum that met the definition of “substantial and significant time”.
However, with the concept and terminology of “substantial and significant time” now completely removed from the Act, this dynamic is likely to change.
In contested proceedings, the court is required to tailor the arrangements for the children in a “bespoke” fashion, having regards to their best interests without any pre-conceived notions about what that may look like. Likewise, in negotiated matters, parents can no longer use “substantial and significant time” as a legislative “baseline”. Hopefully, this will lead to parents taking a more child-focused and case-specific approach to considering what arrangements are appropriate rather than with reference to arbitrary standards.
Schools can expect to see orders in the future taking a more nuanced and less “boilerplate” approach to parenting arrangements.
Best interests
Another key change brought in by the new amendments is the simplification of how the court assesses what is in the best interest of a child.
The previous law set out in section 60CC contained two “primary” considerations and 14 “additional” considerations (many containing sub-provisions) that had to be taken into account by the court. These provisions, some of which substantially overlapped, were often criticised as being cumbersome and inconvenient to address in submissions and judgments.
The amendments have simplified the section 60CC considerations to six matters, as follows:
- what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
- the child; and
- each person who has care of the child (whether or not a person has parental responsibility for the child);
- 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, where it is safe to do so;
- anything else that is relevant to the particular circumstances of the child.
It is beyond the scope of this article to dive into what the considerations that were removed and whether this rewording has a substantive impact with an added focus on safety, or whether the new section is better thought of as simplifying and consolidating the previous considerations. We are aware of family lawyers with views both ways and will need to await emerging information to clarify the issue.
We do note however that “safety” is the key theme of the new amendments, and we expect to see orders following 6 May 2024, particularly those made in contested proceedings, paying even more attention to this aspect.
What the amendments are not
There are many people online and on social media making a variety of claims about the effect of the amendments.
In closing, here is a list of four claims about the amendments that are NOT correct:
1. “The other parent cannot make decisions about the child, because there is no longer a presumption of equal shared parental responsibility”.
The removal of the presumption is a matter only effecting the process by which the court makes a determination about parental responsibility in cases before it on or after 6 May 2024. As discussed above, when no court orders are in place, each parent still has parental responsibility by law and this can only be altered by a family law court order (and/or restrained by the effect of a Family Violence Intervention Order). When family law court orders are in place, the orders will almost always set out how parental responsibility is allocated.
2. “My orders are invalid because they were based on the old law”.
The amendments will not disrupt any existing orders. They will only effect cases (including Application for Consent Orders) determined by the court on or after 6 May 2024.
3. “This is the end of shared care”.
There was never any presumption of shared care in the law and it was not even the starting point. However, shared care is no longer a mandatory consideration if the court orders equal shared parental responsibility. Instead, the court is simply required to consider what arrangements are in the best interests of the child, which may or may not be shared care, depending on the circumstances of the case.
4. “This is about removing fathers from their children’s lives.”
On balance, we consider that the emphasis on safety in the new amendments and removal of the concept of “substantial and significant time” may result in some cases where the non-residential parent’s time is limited further than would have been under the previous law. However, the “best interests” of the child remains the test for what is appropriate, with gender not being a relevant consideration in the court’s assessment. We expect that cases where “no time”, “supervised time”, or very restricted time arrangements are ordered will remain where the child is assessed as being at an unacceptable risk in the care of the relevant parent.
How we can help
Get in touch with the Education Team at Moores if you would like support with interpreting court orders or navigating complex parenting arrangements for your school.
You may also like to consider whether any upcoming staff PD days should contain a refresher and update on family law as it applies to schools.
Contact us
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.