Shared Parental Responsibility: Common Misconceptions
Shared parental responsibility is one of the most misunderstood concepts in Australian family law. It is about who makes major long-term decisions for a child (schooling, health, religion, name, and significant relocation) — it does not mean equal time, and since 6 May 2024 there is no longer a legal presumption that parents must share it equally. This article, prepared by Caspian Legal in Hornsby NSW, corrects the most common misconceptions and explains what the law currently requires under the Family Law Act 1975 (Cth).
What Is Parental Responsibility?
Parental responsibility means the duties, powers, responsibilities and authority that parents have in relation to a child. Under section 61C of the Family Law Act 1975 (Cth), each parent of a child under 18 generally has parental responsibility for that child, regardless of whether the parents were married, are separated, or have re-partnered — unless a court order says otherwise.
Parental responsibility is often confused with “custody” or “who the child lives with.” It is not about where a child lives or how much time they spend with each parent. It is about who has the legal authority to make decisions for the child.
Why the Law Changed in 2024
Significant amendments to the Family Law Act 1975 (Cth), made by the Family Law Amendment Act 2023 (Cth), commenced on 6 May 2024. These amendments removed the previous presumption of “equal shared parental responsibility” (formerly section 61DA) and removed the linked requirement for courts to consider “equal time” or “substantial and significant time” arrangements whenever that presumption applied (formerly section 65DAA). The changes apply to new matters and to existing matters where a final hearing had not started by 6 May 2024.
The reforms were intended to reduce confusion that had built up over nearly two decades, where many parents mistakenly believed that shared decision-making responsibility created an entitlement to equal time with a child. The Attorney-General’s Department has published guidance confirming that the presumption no longer exists and that courts now decide parental responsibility arrangements based on the individual circumstances and best interests of each child.
Common Misconceptions
| Misconception | What the law actually says |
| Shared parental responsibility means equal time with each parent | Parental responsibility relates to decision-making, not time. The former legislative link between equal shared parental responsibility and equal time (repealed section 65DAA) no longer applies |
| The law still presumes parents must share responsibility equally | The presumption of equal shared parental responsibility (formerly section 61DA) was repealed from 6 May 2024. Courts now assess each case individually based on what is in the child’s best interests |
| If we have “joint decision-making,” I can make major decisions alone as long as I tell the other parent afterwards | Where a parenting order provides for joint decision-making on major long-term issues, section 61DAA requires parents to consult and make a genuine effort to reach a joint decision before it is made — not simply be informed afterwards |
| Parental responsibility covers day-to-day choices like bedtime, meals or clothing | Day-to-day decisions are generally made by whichever parent the child is with at the time. Only “major long-term issues” (such as schooling, health, religion, name and significant relocation) require joint decision-making under an order |
| Unmarried fathers, or parents who never lived with the child, automatically have no parental responsibility | Section 61C gives each parent parental responsibility for a child under 18 regardless of relationship status, unless a court order provides otherwise |
| Parenting orders are permanent and can never be revisited | Final parenting orders can be varied, but courts generally require a significant change in circumstances before reconsidering them (the Rice & Asplund principle, now reflected in section 65DAAA) |
| If parents disagree, a judge must always decide | Parents can resolve parental responsibility by agreement, through a parenting plan or consent orders, without a contested court hearing |
Major Long-Term Issues vs Day-to-Day Decisions
| Category | Examples | Who typically decides |
| Major long-term issues | Schooling and education, name changes, religious and cultural upbringing, significant medical or surgical treatment, changes to living arrangements that affect time with a parent | Both parents jointly, if a parenting order requires joint decision-making, or as allocated by the order |
| Day-to-day issues | Meals, bedtime, clothing, minor discipline, everyday activities | Whichever parent the child is with at the time |
What Joint Decision-Making Actually Requires
Where a parenting order provides for joint decision-making about major long-term issues, section 61DAA requires each parent to:
- Consult the other parent before a decision is made
- Genuinely attempt to reach a joint decision
- Have regard to the best interests of the child throughout the process
If there is no parenting order in place, section 61CA encourages (but does not compel) separated parents to consult each other on major long-term issues where it is safe to do so, having regard to the child’s best interests.
How the Court Determines a Child’s Best Interests
Under section 60CC of the Family Law Act 1975 (Cth), as amended from 6 May 2024, the court considers a shorter list of factors than under the previous law, including what arrangements would promote the child’s safety, the child’s views (having regard to their age and maturity), the child’s developmental, psychological, emotional and cultural needs, the capacity of each proposed carer to meet those needs, the benefit of the child having a relationship with each parent where safe to do so, and any other relevant matter, including family violence history.
Document Checklist
If you are seeking, responding to, or varying parenting arrangements, it is generally useful to have:
- Any existing parenting plan or consent orders
- Copies of relevant court orders or applications already filed
- Records of communication with the other parent about the child (school, medical, or other major decisions)
- School reports or enrolment documents
- Relevant medical records for the child
- Any family violence order (AVO) documents that apply to the family
- Evidence of attempts at family dispute resolution, or a section 60I certificate, if applicable
What Not To Do
- Do not assume that “shared parental responsibility” gives you the right to equal time — the two issues are legally separate
- Do not make unilateral decisions about a child’s schooling, medical treatment or name where a parenting order requires joint decision-making
- Do not ignore attempts by the other parent to consult you on a major long-term issue
- Do not assume an existing order is permanent if circumstances have changed significantly — but do not assume you can vary it without proper process either
- Do not rely on general online information as a substitute for advice about your specific parenting order or situation
Common Mistakes
- Confusing “parental responsibility” with “custody” or time arrangements
- Believing the 2024 reforms abolished parental responsibility altogether (they did not — every parent generally retains it under section 61C; what changed is the presumption about how decision-making is allocated between separated parents)
- Assuming a lack of formal agreement means there is no obligation to consult the other parent at all
- Waiting until a dispute escalates before seeking advice or attempting family dispute resolution
Frequently Asked Questions
Does shared parental responsibility mean my child will live with each parent equally?
No. Parental responsibility is about decision-making authority, not living or time arrangements. Time arrangements are addressed separately in a parenting order or parenting plan, based on the child’s best interests.
Do unmarried parents have the same parental responsibility as married parents?
Generally, yes. Section 61C applies to all parents of a child under 18, regardless of marital status, unless a court order provides otherwise.
Can I make a major decision about my child without asking the other parent first?
If a parenting order requires joint decision-making on major long-term issues, no — you are required to consult and genuinely attempt to reach agreement first. If there is no order, the law encourages consultation but does not always require it; your specific situation should be assessed individually.
What happens if we cannot agree on a major long-term issue?
Parents are generally required to attempt family dispute resolution before applying to court, unless an exception applies (for example, urgency or family violence concerns). If agreement cannot be reached, either parent may apply to the Federal Circuit and Family Court of Australia for a parenting order.
Can parental responsibility be changed after final orders are made?
Final parenting orders can be varied, but the court will generally require evidence of a significant change in circumstances before reconsidering them.
Does one parent having “sole parental responsibility” mean the other parent has no role at all?
Sole parental responsibility means one parent has decision-making authority for major long-term issues, but it does not automatically affect time arrangements, which are considered separately based on the child’s best interests.
Getting Advice
A first consultation with Caspian Legal generally involves reviewing any existing orders or agreements, explaining how parental responsibility and decision-making currently apply to your situation, and discussing the practical options available to you, including family dispute resolution, parenting plans, or an application for parenting orders where agreement cannot be reached.
If you have questions about parental responsibility arrangements affecting your child, you can contact Caspian Legal on 02 7264 3200. Our office is located at 22–28 Edgeworth David Avenue, Hornsby NSW 2077. Caspian Legal assists clients across Hornsby and the surrounding Upper North Shore, including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills and Berowra.
Website: caspianlegal.com.au
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Disclaimer
This article is general information only and is not legal advice. It does not take into account your individual circumstances. Family law outcomes depend on the specific facts of each case, and you should obtain advice from a qualified solicitor before acting or relying on this information.
Sources
- Family Law Act 1975 (Cth) s 61C – https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61c.html
- Family Law Act 1975 (Cth) s 61CA – https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s61ca.html
- Family Law Act 1975 (Cth) ss 61D, 61DAA (current, as amended) – https://www.legislation.gov.au/C2004A00275/latest
- Family Law Act 1975 (Cth) s 60CC (current, as amended from 6 May 2024) – https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html
- Attorney-General’s Department, “Children and family law” – https://www.ag.gov.au/families-and-marriage/children-and-family-law
- Federal Circuit and Family Court of Australia – https://www.fcfcoa.gov.au
