When parents separate, one of the first questions is usually where the children will live. But there is another question that matters just as much and often gets less attention: who gets to make the big decisions? Which school the children attend, what medical treatment they receive, whether they are raised in a particular religion and whether they can move to another city are all decisions with long-lasting effects.
Australian family law has a framework for these decisions, and it has changed in recent years. Understanding how the law now approaches shared parental responsibility in family law can help separated parents make informed choices and avoid misunderstandings.
Parental responsibility explained
Parental responsibility refers to the duties, powers, responsibilities and authority that parents have in relation to their children. It is not the same as time spent with children. A parent may have significant decision-making responsibility while the children live mostly with the other parent, or vice versa.
Unless a court orders otherwise, each parent generally has parental responsibility for their children, and this does not automatically change because the parents separate.
Major long-term issues
The law distinguishes between day-to-day decisions and major long-term issues. Day-to-day matters, such as what the children eat for dinner or what time they go to bed, are usually decided by the parent the children are with at the time.
Major long-term issues include education, religious and cultural upbringing, health, changes to a child’s name and significant changes to living arrangements that would make it harder for a child to spend time with a parent.
The 2024 changes
Significant amendments to the Family Law Act took effect in May 2024. Among the most important was the removal of the presumption of equal shared parental responsibility.
Previously, the court began with a presumption that it was in a child’s best interests for parents to share responsibility equally, unless certain circumstances applied. That presumption was often misunderstood as a right to equal time with the children.
Now, the court makes decisions about parental responsibility based on what is in the child’s best interests in each case. It can still make orders for joint decision-making, where parents must consult and try to agree on major long-term issues, or for one parent to have sole responsibility for some or all decisions.
Best interests come first
The child’s best interests are the most important consideration in parenting matters. The amended law sets out key factors the court considers, including the safety of the child and the people caring for them, the child’s views, their developmental, psychological, emotional and cultural needs, each parent’s capacity to provide for those needs and the benefit of the child having a relationship with both parents and other significant people where it is safe.
For Aboriginal and Torres Strait Islander children, the right to connect with their family, community, culture, country and language is also considered.
Joint decision-making in practice
When parents share decision-making responsibility, they are expected to consult each other genuinely and try to reach agreement on major issues. That might involve discussing school options, medical treatment or a proposed move.
Joint decision-making works best when parents can communicate respectfully. Tools such as co-parenting apps, regular check-ins and written agreements can help.
When sole responsibility may be appropriate
In some situations, such as where there is family violence, high conflict or one parent is unable to participate in decision-making, the court may decide that one parent should have sole responsibility for some or all major decisions.
Parenting plans and orders
Parents can record agreements about decision-making and living arrangements in a parenting plan, which is a written agreement signed by both parents. Parenting plans are flexible but not legally enforceable in the same way as court orders.
For greater certainty, parents can apply for consent orders, which formalise their agreement. If parents cannot agree, they may need to attend family dispute resolution before applying to court.
Focus on the children
Separation is difficult for children, and conflict between parents can make it harder. Children benefit from stability, reassurance and parents who work together where possible.
Seek advice early
Family law is complex and recent changes mean older advice may no longer apply. A family lawyer can explain how the current law affects your situation and help you reach arrangements that put your children’s wellbeing at the centre.
