Parental Responsibility: A Guide for Separating Parents

Australian family law has undergone significant changes in recent years, particularly major reforms that commenced on 6 May 2024, where a revised framework was introduced for determining a child’s best interest and removing the former presumption of equal shared parental responsibility.

This article explains what parental responsibility means in 2026, how it operates after separation, what the law says about major long-term decisions, and how parents can establish suitable parenting arrangements post-separation.

What is parental responsibility?

Section 61B of the Family Law Act 1975 (Cth) defines parental responsibility as the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

Parental responsibility can involve decisions about:

• Education;
• Healthcare;
• Cultural and religious upbringing;
• Passports and travel;
• Living arrangements; and
• Personal development and welfare.

Do both parents retain parental responsibility after separation?

Under section 61C of the Family Law Act 1975, each parent of a child under 18 has parental responsibility, subject to any applicable court orders.

This position is not automatically changed when parents separate, divorce, enter into new relationships or remarry.

It is important to note that this Section does not establish a presumption to be applied by the Court when making a parenting order.

Consulting on major long-term issues

Section 61CA of the Family Law Act 1975 encourages parents to consult each other about major long-term issues and have regard for the child’s best interests (where it is safe to do so and subject to court orders).

Where a parenting order provides for joint decision-making about major long-term issues, section 61DAA generally requires the parents to consult each other and make a genuine effort to come to a joint decision on the relevant issues.

Under section 4 of the Family Law Act, major long-term issues may include:

• The child’s education (both current and future);
• The child’s religious and cultural upbringing;
• The child’s health;
• The child’s name; and
• Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

Major long-term issues do not generally include day-to-day decisions made while a child is in the care of one parent, such as daily routines, extracurricular activities, meals or everyday healthcare decisions.

What is the difference between parental responsibility and equal time?

The distinction between parental responsibility and the time that the child spends with each parent is important. Parental responsibility concerns the duties, authority and decision making involved in raising a child, while parenting arrangements address matters such as where the child lives and when and how they spend time with each parent.

A child may primarily live with one parent whilst maintaining a meaningful relationship with the other parent. Depending on the circumstances, the parents may share decision-making responsibilities, or a court may allocate sole decision-making responsibility for some or all major long-term issues to one party.

There is no automatic presumption that equal time is appropriate for every family. Any proposed parenting arrangement must be assessed against the child’s best interests. Section 60CA provides that “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration”.

How are children’s best interests considered?

Section 60CC sets out the matters a court must consider when determining what arrangements are in a child’s best interests, which include:

• What arrangements would promote the Safety of the child and each person that has care of a child;
• The child’s views;
• The developmental, psychological, emotional and cultural needs of the child;
• Capacity of each proposed carer;
• Benefit of maintaining important relationships; and
• Any other relevant circumstances.

Parenting Plan and Consent Orders

Parents who agree about their children’s arrangements have several options for recording their agreement, including parenting plans or consent orders.

Parenting Plan

A parenting plan is a written agreement between the child’s parents that is signed and dated by both parents and made freely, without any threat, duress or coercion.

A parenting plan can address living arrangements, time with each parent, decision-making responsibilities and other matters which concern the child.

Parenting plans are flexible and can be updated by agreement and may be appropriate in circumstances where parties can communicate constructively and effectively. However, they are not enforceable in the same way as court orders.

Consent Orders

Consent orders are legally binding orders made by the Court with the agreement of the parties. Parents can apply to the relevant family law court to formalise their agreed arrangements.

The Court must be satisfied that the proposed arrangements are in the child’s best interest. Once made, the orders must be followed and can be enforced if there is no compliance by one parent.

When can Family Dispute Resolution assist?

Family Dispute Resolution (FDR), otherwise referred to as family mediation, can assist separated parents in working through disagreements about their children.

Parents must make a genuine effort to resolve the matter through FDR before applying to court for parenting orders. These steps are known as pre-action procedures.

If parents can reach an agreement, it can be recorded in a parenting plan or by way of consent orders.

Advice on Parenting arrangements during a divorce

It is common for couples going through a separation to have questions about the legal and practical arrangements for their children. Even though your relationship with your partner has changed, if you have had children together and it is safe to do so, it’s generally in everyone’s best interest for you and your ex to agree on parenting arrangements that keep both parents involved in the children’s lives.

Reach out for a confidential, no-obligation conversation today.