The End of Presumed Equal Shared Parental Responsibility: What Australian Parents Need to Know

Australia’s family law landscape changed forever on 6 May 2024. After more than 15 years, the presumption of equal shared parental responsibility, a cornerstone of parenting disputes, was swept aside in the most significant legal overhaul in decades. 

For separated parents, this marks a profound shift: courts now prioritise child safety, wellbeing, and tailored solutions over rigid formulas of “equal rights.” If you’re a parent navigating separation or thinking about your family’s future, understanding these changes is very important. 

Here’s what you need to know.

What Changed in May 2024?

The Family Law Amendment Act 2023 abolished two key pillars of the previous system:

1. The presumption of equal shared parental responsibility (previously under Section 61DA)
2. The mandatory “parenting pathway” requiring courts to consider equal or substantial time arrangements
   
   

Under the old law, courts had to start from the assumption that shared decision-making was ideal unless rebutted by evidence of abuse, violence, or impracticality. This framework often created confusion, with many parents believing it guaranteed equal custody time rather than joint decision-making authority.

How Courts Now Determine Parenting Arrangements

The following reforms replaced the previous 16-factor “best interests” test with a simplified six-factor framework. It includes: 

1. Safety first

• Explicit consideration is given for cases involving family violence, abuse (physical/emotional), neglect, and existing protection orders. 
• Courts must assess the risks to both the children and the caregivers. 

2. The child’s views

• Children’s views now also carry more weight in court, depending on the child’s age and maturity level. 
• Additionally, children have better access to independent legal support.

3. Developmental needs

• There is also a higher focus on the stability, educational requirements, and cultural connections (particularly for Aboriginal/Torres Strait Islander) of the children.

4. Parental capacity

• A fit parent in the eyes of the court must be able to meet the child’s emotional, psychological, and practical needs.

5. Benefits of meaningful relationships

• A child’s relationship with an adult will only be considered by the court if it is safe and in the child’s interests. 

6. Practical realities

• Distance between homes, work commitments, and cost of arrangements are also important considerations. 

Key Impacts on Separating Families

1. No Automatic Entitlement to 50/50 Time

The removal of the “parenting pathway” means courts no longer follow a step-by-step process requiring consideration of equal time, then substantial time. As Jackie Galloway, CEO of Peninsula Community Legal Centre, explained:  

“By removing the word “equal”, the new reforms make it clearer that there is no parental entitlement to equal responsibility or equal time with children under Australian law,” said Ms. Galloway. “Who will have parental responsibility is solely guided by what is in the best interests of the child, including safety, and is decided on a case-by-case basis.”

Real-world example: A parent with a history of coercive control may now receive limited decision-making authority, even if they pose no direct physical threat to the child.

2. Reduced Pressure for Unsafe Agreements

Previously, the presumption led some victims of family violence to accept unsafe shared care arrangements. Some people feared courts would penalise them for “uncooperative” behaviour. 

Now, the changes empower courts to:

• Prioritise protective measures.
• Dismiss frivolous applications aimed at harassing ex-partners (“systems abuse”).

3. Cultural Considerations Elevated

For Indigenous families, courts must now specifically evaluate:

• Connection to Country
• Participation in community practices
• Impact of proposed arrangements on cultural identity

Practical Advice for Families Navigating the New System

1. Document Everything

Keep records of safety concerns, communication attempts, and care contributions. For example, SMS logs and screenshots such as “I’ll be late for pickup again” can be used as evidence to demonstrate patterns.

2. Focus on Solutions, Not Percentages

Instead of parents demanding “50% time,” they might now consider proposing schedules that align with the child’s school routines and extracurricular activities.

3. Use Mediation Wisely

Family dispute resolution practitioners and mediators now have clearer guidelines to screen for power imbalances and violence.

4. Understand Parental Responsibility vs. Care Time

A parent can still easily retain joint decision-making on their child’s education and health matters without equal overnight stays. Instead, the focus is now on what arrangement best supports the child’s wellbeing, rather than trying to split time evenly between parents. Courts will continue to encourage shared involvement in major life decisions, even if a child’s living arrangements aren’t strictly 50/50.

Controversies and Criticisms

While advocates praise the reforms for protecting vulnerable families, some legal professionals warn:

• Increased subjectivity: Simplified factors may lead to inconsistent rulings.
• Resource strain: Greater reliance on family reports and expert assessments could prolong cases.
• Retroactive application: Cases filed before 6 May 2024 but not yet heard fall under the new laws. 

Parenting After Reform 

These changes reflect a societal shift from viewing parenting as a parental right to a child-centred responsibility. As Stefanie Fontana from Kingsford Lawyers explains:

“These reforms fundamentally shift the approach to family law. Now we’re asking what arrangement will genuinely nurture this child’s wellbeing, rather than dividing parenting as if it were property to be allocated.”

For separating parents, success now hinges on demonstrating:

• Willingness to facilitate the child’s relationship with the other parent (where safe)
• Capacity to provide stability
• Awareness of the child’s unique emotional and cultural needs

While the path is less prescriptive, the destination remains the same: parenting arrangements that serve children’s best interests, not parental pride or precedent.

Navigating family law changes can be overwhelming. Kingsford Lawyers’ experienced team offers practical support through the complexities of parenting matters. With offices in Gold Coast and Melbourne, we can help you understand how these reforms affect your family situation. Contact us online or call 1300 244 342 for a confidential discussion.