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The two key concepts: responsibility and time
Australian family law separates parenting into two distinct concepts. You can have sole responsibility for decisions while the child spends equal time with both parents — or parents can share decision-making while the child primarily lives with one. Understanding this distinction is essential before applying for orders.
Parental responsibility
Parental responsibility is the legal authority to make major long-term decisions about a child. It covers education (which school, tutoring), health (non-emergency medical treatment), religion and cultural upbringing, name changes, and where the child lives long-term. Emergency medical decisions can be made by either parent regardless of how responsibility is allocated.
Time arrangements
Time arrangements govern how much time the child physically spends with each parent. Orders may specify "lives with" arrangements (primary residence), "spends time with" arrangements (visitation), equal time (50/50) or unequal splits, holiday and special occasion time, and "communicates with" orders covering phone and video contact.
Critical distinction
Why do people still say "custody"? The term was officially replaced in 2006 but remains widely used by parents, media, and even some legal professionals. When someone says "sole custody," they usually mean sole parental responsibility and/or the child primarily living with one parent. "Shared custody" typically means shared time and shared decision-making. Both sets of terms appear in this guide to bridge everyday language and legal reality.
Side-by-side comparison
The table below maps the practical effect of each arrangement across the decisions that matter most.
| Factor | Sole responsibility | Equal shared responsibility |
|---|---|---|
| School choice | One parent decides alone | Both must consult and genuinely try to agree |
| Non-emergency medical | One parent decides alone | Both must consult and genuinely try to agree |
| Emergency medical | Either parent can consent | Either parent can consent |
| Day-to-day decisions | Parent the child is with decides | Parent the child is with decides (s61DAB) |
| Relocation | May relocate more easily (court still considers best interests) | Cannot unilaterally relocate if it affects time with the other parent |
| Passport application | Parent with sole responsibility can apply | Both parents must consent (or court order) |
| Name change | Parent with sole responsibility can apply | Both parents must consent (or court order) |
| Religious upbringing | One parent decides alone | Both must consult and genuinely try to agree |
When courts order sole parental responsibility
Since the 2024 amendments removed the presumption of shared responsibility, courts assess each case purely on the child's best interests. Sole responsibility is typically ordered when joint decision-making would be impractical or harmful.
- Family violence — where there is a history of violence, abuse, or coercive control that makes cooperative decision-making unsafe or impossible.
- Entrenched high conflict — parents who cannot communicate about major decisions without escalating conflict, causing distress to the child; repeated failed attempts at joint decision-making.
- Parental disengagement — one parent has been absent, uninvolved, or has demonstrated unwillingness to participate in the child's life and major decisions.
- Risk to the child — drug or alcohol abuse, untreated mental health conditions, criminal behaviour, or other factors that compromise the parent's decision-making capacity.
- Practical impossibility — parents living in different countries or extreme distances apart where timely consultation on decisions is not feasible.
The court must be satisfied that sole responsibility serves the child's best interests; it is not awarded automatically because a relationship has broken down.
When courts order equal shared parental responsibility
Shared responsibility works when both parents can put the child's needs first and communicate about major decisions, even if they disagree on other matters.
- Functional communication — parents can discuss major decisions respectfully, even if they use email or a co-parenting app rather than face-to-face conversation.
- Both parents actively involved — both parents participate in the child's life, attend school events, manage health needs, and demonstrate ongoing commitment.
- Willingness to consult — both parents demonstrate a genuine willingness to seek the other's input on major decisions, even when they disagree.
- No significant safety concerns — no history of family violence, abuse, or other factors that would make joint decision-making unsafe or impractical.
- Child benefits from both perspectives — the child's developmental, educational, and emotional needs are well-served by having both parents actively involved in major decisions.
New section 61DAA
What changed on 6 May 2024
The Family Law Amendment Act 2023 made the most significant structural changes to the parental responsibility framework since 2006, effective 6 May 2024.
- Presumption removed: Former section 61DA (presumption of equal shared parental responsibility) was repealed. There is no longer any default starting position.
- Equal time pathway removed: Former section 65DAA (mandatory consideration of equal time where shared responsibility was ordered) was repealed.
- Simplified best interests: Section 60CC was restructured from 15+ factors to 6 non-hierarchical factors for assessing a child's best interests.
- New consultation rules: Sections 61DAA and 61DAB clarify how joint decision-making works in practice — including what "genuine effort" to consult requires.
Scope of the 2024 changes
Common questions
Does Australia use the term 'custody'?
Not officially. The Family Law Act 1975 uses 'parental responsibility' (decision-making) and 'time spent with' (living arrangements) instead of 'custody.' However, many Australians still use 'custody,' 'sole custody,' and 'shared custody' colloquially. This guide uses both terms to help you understand the legal concepts regardless of terminology.
What is sole parental responsibility?
Sole parental responsibility means one parent has the legal authority to make major long-term decisions about the child without consulting the other parent. These decisions include education, religious upbringing, health (non-emergency), name changes, and where the child lives. The other parent may still have time with the child — sole responsibility relates to decision-making, not time.
What is equal shared parental responsibility?
Equal shared parental responsibility (previously called 'joint custody') means both parents must consult each other and make a genuine effort to agree on major long-term decisions about the child. Day-to-day decisions are made by whichever parent the child is with at the time. Since the 2024 amendments removed the former presumption, the court decides on a case-by-case basis.
Is there still a presumption of shared parental responsibility?
No. The presumption of equal shared parental responsibility (former section 61DA) was repealed on 6 May 2024 by the Family Law Amendment Act 2023. Courts now assess parental responsibility based on the child's best interests without any starting presumption. The court may still order shared responsibility — it's just no longer the default.
If one parent has sole responsibility, can the other parent still see the child?
Yes. Sole parental responsibility relates to decision-making authority, not time arrangements. A parent with no parental responsibility can still have substantial time with the child, including overnight stays, weekend time, and holidays. The court assesses time arrangements separately based on the child's best interests.
When do courts order sole parental responsibility?
Courts typically order sole parental responsibility when parents cannot communicate or cooperate on major decisions, there is a history of family violence, one parent poses a risk to the child, one parent is absent or disengaged, or there is entrenched high conflict that makes joint decision-making impractical. The court must be satisfied that sole responsibility serves the child's best interests.
Can parental responsibility arrangements be changed?
Yes, by showing a 'significant change in circumstances' since the original order. Examples include improved communication between parents, resolution of family violence issues, a parent becoming more involved, or the child's changing needs. You must attempt Family Dispute Resolution before applying to vary orders, unless an exemption applies.
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