If you’ve searched for information on equal shared parental responsibility, there’s a good chance you’ve come across content describing a legal presumption that no longer applies. This is one of the most misunderstood areas of family law Australia has seen in years, and it’s worth setting the record straight before looking at what actually happens today.
Until 6 May 2024, the Family Law Act 1975 (Cth) required the Family Law Courts in Australia to apply a rebuttable presumption that it was in a child’s best interests for both parents to share equal shared parental responsibility, meaning both parents share the authority to make major long-term decisions for their child, unless there were reasonable grounds to believe a parent, or someone living with a parent, had engaged in abuse or family violence.
That presumption, along with the related rules requiring courts to consider equal time or substantial and significant time arrangements, was repealed by the Family Law Amendment Act 2023 (Cth). This guide explains what changed, what the law actually says now, and how parental responsibility and care arrangements work in practice for separating families.
What Changed, and Why It Matters
The presumption of equal shared parental responsibility was introduced back in 2006 to encourage cooperative parenting after separation. In practice, though, it caused two persistent problems.
First, many parents mistakenly believed equal shared parental responsibility meant a right to equal shared time with their children, which was never actually the law.
Second, the presumption sometimes made it harder to secure sole parental responsibility orders in genuine family violence cases, since it had to be positively rebutted rather than simply weighed as one factor among many.
Following recommendations from the Australian Law Reform Commission, the Family Law Amendment Act 2023 removed the presumption entirely, along with the old section 65DAA framework that required courts to work through equal time, and then substantial and significant time, in a rigid step-by-step process.
These changes commenced on 6 May 2024 and apply to new and most existing parenting proceedings. The Attorney-General’s Department has published an Equal shared parental responsibility fact sheet explaining the changes for parents, alongside a more detailed fact sheet for family law professionals.
What Is Parental Responsibility, and What Isn’t It?
Parental responsibility refers to the legal duties, powers, and authority a parent has for a child, specifically the responsibility for major long-term decisions such as education, religious and cultural upbringing, significant medical treatment, the child’s name, and where the child lives on a long-term basis.
It does not cover the everyday decisions made while a child is in a parent’s care, such as what they eat for dinner or what time they go to bed. Those day-to-day decisions sit with whichever parent has the child at the time, without needing to consult the other parent.
This distinction matters because parental responsibility and time spent with a child are two separate legal questions.
A parent can have significant time with a child but no legal authority over major decisions, and conversely, a parent with sole parental responsibility does not automatically get more time with the child as a result.
How Parental Responsibility Is Decided Now
There is no longer a starting presumption either way. Instead, the court considers what arrangement is in the best interests of the child, using the simplified list of factors introduced by the 2023 amendments in section 60CC of the Family Law Act 1975 (available in full on AustLII). Broadly, the court now looks at:
- What arrangements would promote the child’s safety, including safety from family violence, abuse, or neglect
- Any views expressed by the child
- The developmental, psychological, emotional, and cultural needs of the child
- The capacity of each parent to meet those needs
- The benefit to the child of a relationship with each parent, and with other significant people in their life, where it is safe
- Any other matter the court considers relevant, including the right of an Aboriginal or Torres Strait Islander child to enjoy their culture
Based on these factors, a court can still order that both parents sharing decision-making on major long-term issues is the right outcome, it just no longer starts from that position by default.
The court can equally order sole parental responsibility, or a split arrangement where parents jointly decide some issues but one parent has sole responsibility for others, such as where there has been a pattern of poor communication around medical decisions specifically.
Shared, Sole, and Split Parental Responsibility Explained
Shared parental responsibility. Both parents have equal say in major decisions affecting their child’s welfare and must make a genuine effort to consult one another and reach a joint decision on issues like schooling, medical treatment, and religious upbringing.
Sole parental responsibility. One parent can make major long-term decisions without needing to consult the other. This does not necessarily mean the other parent has limited time with the child. A court can order sole parental responsibility to one parent while the child still lives with, or spends substantial time with, the other parent.
Split parental responsibility. A court can order that parents share responsibility for some categories of decision, such as education, while giving one parent sole responsibility for others, such as medical decisions, depending on what best serves the child in that specific area.
How Care Arrangements, or “Time Spent,” Are Now Decided
Because the old section 65DAA pathway has been repealed, there is no longer a mandatory legal step requiring the court to specifically consider equal time, then substantial and significant time, once a parental responsibility order is made.
This does not mean equal time arrangements are off the table. Courts retain full discretion to order equal time, primary residence with one parent and regular time with the other, or a graduated care schedule, whatever best suits the child’s best interests and is reasonably practicable given each family’s circumstances.
Reasonable practicability still matters in this assessment, and courts typically consider things like how far apart the parents live, each parent’s capacity to actually implement the arrangement, how well the parents communicate, and the impact the proposed arrangement would have on the child day to day.
In practice, common outcomes still include a child living with each parent on a rotating weekly basis, living primarily with one parent and spending alternate weekends and school holiday periods with the other, or a more tailored schedule built around the family’s specific circumstances, work commitments, and the child’s age.
If you’re navigating a dispute where one parent wants to relocate with the children, our article on why you need a child custody lawyer for relocation disputes on the Gold Coast explains how these practicability factors are weighed in that specific context.
What This Means for Separating Parents Today
If you’re currently negotiating parenting arrangements, or have an existing order made before 6 May 2024, it’s worth getting advice on how these changes might affect your matter, since the shift away from a starting presumption can change how a case is argued, even where the eventual outcome looks similar to what a family might have expected under the old law.
Our parenting arrangements service page and our Ultimate Family Law Guide both cover the practical side of putting a parenting arrangement in place, whether that’s through consent orders or a contested hearing.
You can also browse further reading in our children and parenting and separation archives, and our divorce and separation category if parenting matters are part of a broader separation.
If you’re unfamiliar with how a parenting matter typically proceeds through the courts, our overview of understanding the legal process is a good starting point before your first consultation.
If you would like advice regarding your circumstances, contact our office to take advantage of our free initial appointment with our child custody lawyers, available through our Brisbane or Gold Coast offices, or explore our full range of family law services.
Frequently Asked Questions
Should both parents have equal responsibility in raising a child?
Australian law no longer starts from an assumption either way. Whether shared responsibility is appropriate depends on what is genuinely in the best interests of the individual child, weighed against factors like safety, the child’s needs, and each parent’s capacity to meet them. In many families, particularly where there is no history of violence or serious conflict, shared decision-making on major issues remains a common and often practical outcome, but it is decided on the facts of each case rather than presumed.
Does a father have the same rights as mums in Australia?
Yes. The Family Law Act 1975 does not distinguish between mothers and fathers when it comes to parental responsibility or care arrangements. Both parents start from an equal legal footing, and the court’s focus is on what arrangement serves the best interests of the child, not on the gender of either parent. Historical perceptions that mothers are automatically favoured are not reflected in the current legal framework.
What is parental responsibility in Australia?
Parental responsibility is the legal authority and duty a parent holds to make major long-term decisions for their child, covering things like education, religious and cultural upbringing, significant medical treatment, and the child’s name. It is distinct from the day-to-day care of a child, which is managed by whichever parent the child is with at the time, and from decisions about how much time a child spends with each parent, which the court addresses separately through living and time-spent orders.
What is the most common custody arrangement in Australia?
There is no single arrangement that applies to every family, since outcomes depend heavily on each family’s circumstances, but common patterns include a child living primarily with one parent and spending regular time, such as alternate weekends and part of school holidays, with the other, as well as arrangements where a child spends roughly equal time living with each parent, particularly where both parents live close together and communicate well. Courts and separating parents alike tend to favour whatever arrangement is genuinely workable and stable for the specific child involved, rather than defaulting to a single standard model.
This article is general information only and does not constitute legal advice. Family law changes regularly, and outcomes depend on the specific facts of each case. Please speak with a qualified family lawyer for advice tailored to your situation.
