On 6 May 2024, the most significant changes to Australian parenting law in almost two decades took effect. The Family Law Amendment Act 2023 (Cth) removed the presumption of equal shared parental responsibility, abandoned the requirement to consider equal time, and rewrote the list of factors courts use to decide what is best for a child.
For separating parents, the changes affect how arrangements are negotiated as much as how cases are decided in court. This article explains what changed, how parenting arrangements are now decided, and what it means in practice.
This is general information, not legal advice.
The principle that has not changed
The paramount consideration in any parenting decision remains the best interests of the child. Not fairness between the parents, not what either parent wants, and not what the parents had previously agreed, although all of those may be relevant to what is best for the child.
What was removed
The presumption of equal shared parental responsibility
From 2006 until May 2024, the Family Law Act required the court to apply a presumption that it was in a child's best interests for the parents to have equal shared parental responsibility, joint decision-making on major long-term issues, unless there were reasonable grounds to believe there had been family violence or child abuse, or it was not in the child's best interests.
That presumption is gone. The court now simply decides, on the facts, how decision-making about major long-term issues should be allocated.
The link to equal time
Where equal shared parental responsibility was ordered, the old law required the court to consider whether the child spending equal time, or substantial and significant time, with each parent was in the child's best interests and reasonably practicable. Many parents understood this as a right to equal time, which it never was. The requirement has been removed.
What the court now considers
The Act now sets out a focused list of best-interests factors. In summary, the court must consider:
- Safety
What arrangements would promote the safety of the child and each person who has care of the child, including safety from family violence, abuse, neglect or other harm; - The child's views
Any views expressed by the child; - The child's needs
Their developmental, psychological, emotional and cultural needs; - Capacity
The capacity of each proposed carer to provide for those needs, including by seeking support; - Relationships
The benefit to the child of a relationship with each parent and other significant people, such as grandparents and siblings, where it is safe to do so; and - Anything else relevant to the child's particular circumstances.
In considering safety, the court must include any history of family violence, abuse or neglect involving the child or a carer, and any family violence order.
For Aboriginal and Torres Strait Islander children, the court must also consider the child's right to enjoy their culture, including the right to connect with family, community, culture, country and language.
Parental responsibility now
Each parent of a child under 18 has parental responsibility (the duties, powers and authority parents have in relation to their children) unless a court orders otherwise. Parenting orders can allocate responsibility for major long-term issues, such as:
- the child's education;
- religious and cultural upbringing;
- health;
- name; and
- changes to living arrangements that make it significantly more difficult for the child to spend time with a parent.
The court can order joint decision-making, in which case parents must consult and try to reach agreement; or it can allocate responsibility for some or all issues to one parent. It is also possible to divide responsibility, for example, joint decisions about education, but one parent responsible for health.
Other important changes
Changing final orders
The rule from Rice v Asplund (1978), that final parenting orders should not be revisited unless there has been a significant change of circumstances, is now in the Act. The court must consider whether there has been a significant change since the final orders were made, and whether it is in the child's best interests to reconsider them.
Children's voices
Independent Children's Lawyers must now generally meet with the child and give them an opportunity to express their views, subject to exceptions such as where the child does not want to or it would expose them to risk.
Definition of family
The definition of "member of the family" was expanded to recognise Aboriginal and Torres Strait Islander concepts of family and kinship.
Compliance
The provisions dealing with breaches of parenting orders were simplified, with a clearer framework for compliance and enforcement.
What it means in practice
Negotiations focus on the child, not on entitlements
Because there is no longer a legal starting point of shared responsibility linked to time, negotiations tend to focus more directly on the child's needs, routines and relationships. Arguments framed around a parent's "right" to equal time carry less weight.
Equal time is still possible
Nothing in the amendments prevents equal time. Where parents live close to each other and the school, communicate well, and the child is thriving, a week-about or similar arrangement may well be in the child's best interests. What has changed is that there is no statutory pathway pointing towards it.
Safety is central
Safety is now the first listed factor. Allegations of family violence must be taken seriously and assessed. Parents raising concerns should do so carefully and with evidence; parents responding to them should get advice early.
Decision-making needs thought
With no presumption, parents and courts must think carefully about how decisions will actually be made. Where parents cannot communicate effectively, joint decision-making may not work, and orders may allocate responsibility or build in mechanisms such as consultation timeframes or a nominated professional.
Mediation remains the starting point
Parents must still generally attend family dispute resolution and obtain a certificate before applying to court, unless an exception applies. See family mediation.
Common questions from parents
"My ex says the law now favours mothers." It does not. The law is gender-neutral. The changes remove a presumption; they do not favour either parent.
"Can my teenager choose where to live?" A mature teenager's views carry significant weight, but there is no age at which a child decides. See our page on parenting and custody.
"We already have orders. Should we change them?" The amendments do not automatically change existing orders. Changing final orders requires a significant change of circumstances.
"Can I move with the children?" Relocation is decided on the same best-interests factors. Read relocating with children after separation.
Practical steps
- Focus on your children's routines, needs and relationships, and keep notes.
- Keep communication with the other parent child-focused, civil and in writing where possible.
- If safety is an issue, seek advice immediately. See family violence and AVOs.
- Consider a parenting plan early, and consent orders for certainty.
- Get advice before making significant changes: new schools, moving house or introducing a new partner.
How we can help
We help parents build parenting arrangements that work, through negotiation, mediation and, where necessary, the court. See parenting and custody and Family Court.
This article is general information about the law as at the date it was last reviewed. It is not legal advice and does not take your circumstances into account.