On 6 May 2024 the Family Law Amendment Act 2023 (Cth) made the biggest changes to Australian parenting law in almost two decades. More than two years on, we still meet separated parents in Brisbane, Beenleigh and Ballina who believe the law starts from "50/50". It doesn't — and if you are negotiating parenting arrangements or thinking about going to court, understanding what changed can make a real difference to your outcome.
The end of the presumption of equal shared parental responsibility
Before May 2024, section 61DA of the Family Law Act 1975 (Cth) required the court to presume that it was in a child's best interests for parents to have equal shared parental responsibility — that is, to make major long-term decisions together. If that presumption applied, the court then had to consider whether the child should spend equal time, or "substantial and significant time", with each parent (former section 65DAA).
Many parents understood this as a right to equal time. It never was, but the link between "equal responsibility" and "equal time" caused widespread confusion and conflict. The 2024 amendments repealed both provisions. There is now no presumption either way — and no starting point of equal time.
What replaced it: a simpler "best interests" test
The child's best interests remain the paramount consideration (section 60CA). What changed is how the court decides what those best interests are. The old two-tier list of "primary" and "additional" considerations has been replaced by a single, shorter list in section 60CC(2). The court must consider:
- arrangements that 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;
- any views expressed by the child;
- the child's developmental, psychological, emotional and cultural needs;
- the capacity of each proposed carer to meet those needs;
- the benefit to the child of having 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.
Under section 60CC(2A), the court must also consider any history of family violence, abuse or neglect involving the child or a parent, and any family violence order that applies or has applied. For Aboriginal and Torres Strait Islander children, section 60CC(3) requires the court to consider the child's right to enjoy their culture, including connection with family, community, country and language.
The practical effect is that safety now sits at the front of the analysis, and arrangements are built around the individual child's needs rather than a formula.
Decision-making: "joint" or "sole" — not "equal shared"
The language has changed too. Parenting orders now allocate responsibility for major long-term issues — such as education, religion, health and significant changes to where a child lives — either jointly or solely.
- Section 61CA encourages parents to consult each other about major long-term issues, where it is safe to do so, unless orders say otherwise.
- Where an order gives parents joint decision-making responsibility, section 61DAA requires them to consult each other and make a genuine effort to reach a joint decision.
Joint decision-making is still common where parents can communicate safely. But the court no longer starts from that position, and it will not order joint decision-making simply because it was the default under the old law.
Changing final parenting orders: Rice v Asplund is now law
For decades, the courts applied the rule in Rice v Asplund (1979): final parenting orders should not be revisited unless there has been a significant change of circumstances. The amendments put that rule into the Act. Under section 65DAAA, before reconsidering final parenting orders, the court must be satisfied that:
- there has been a significant change of circumstances since the orders were made; and
- reconsidering the orders is in the child's best interests.
If you want to change final orders, you will need evidence on both points. And of course, parents can still agree to new arrangements between themselves, for example through a parenting plan or consent orders.
Children's voices and Independent Children's Lawyers
Where an Independent Children's Lawyer (ICL) is appointed, they must now meet with the child and give the child an opportunity to express their views, subject to limited exceptions — for example, where the child is under five, does not want to meet, or there are exceptional circumstances (section 68LA(5A)–(5C)). This reflects the greater weight the amendments give to children's own perspectives.
Protection from harmful, repeated litigation
The amendments also gave the court a new power to make "harmful proceedings orders". These can prevent a party from filing further applications without the court's permission where repeated proceedings would cause harm to the other party or the child. This is particularly relevant where litigation itself is being used as a form of control or abuse.
Does this apply to my case?
The amendments took effect on 6 May 2024 and apply to new proceedings and to proceedings that were already on foot, except where a final hearing had already begun. If you have orders made under the old law, they remain valid — but any application to change them will be decided under the new provisions, including section 65DAAA.
What this means for separated parents
- Don't assume 50/50. Equal time may still be ordered or agreed where it suits the child, but there is no entitlement or presumption.
- Focus on your child's needs. Proposals that are practical, safe and centred on the child's development are more persuasive than arguments about "fairness" between parents.
- Raise safety concerns early. Family violence and safety are now front and centre, and the court must consider any history of violence and any protection orders.
- Try to resolve matters outside court. Family dispute resolution and mediation remain the expected first step in most parenting disputes, and agreements reached that way can be formalised as consent orders.
Talk to us about your parenting arrangements
Transitional Legal is a family law firm with offices in Brisbane, Beenleigh and Ballina. Our principal, Roger Poed, is an accredited mediator and Family Dispute Resolution Practitioner, so we can help you reach an agreement — or represent you in court if that isn't possible. Contact us to book a consultation.
This article is general information only and is not legal advice. The law may have changed since publication. You should obtain advice about your own circumstances.