The difference between sole and joint parental responsibility

Separated parents usually ask two separate questions about their children. Where will the children live, and how much time will they spend with each parent? And who makes the big decisions about them, such as which school they go to? This article is about the second question. The law on it changed in 2024, and much of what is still written about it online is out of date.

Which law applies in WA

All parenting cases in Western Australia are heard by the Family Court of Western Australia. For children whose parents were married, the court applies Part VII of the Family Law Act 1975 (Cth), which was changed on 6 May 2024. For children whose parents were never married, it applies Part 5 of the Family Court Act 1997 (WA). Western Australia made the same changes to its Act, but they took effect later, on 10 February 2025. The rules are now the same in substance for both groups.

Parental responsibility without any court order

Parental responsibility means all the duties, powers and authority that the law gives parents over their children. Each parent of a child under 18 has it, and separating does not change that. Unless a court orders otherwise, both parents keep it after they part.

The law encourages separated parents, where it is safe to do so, to consult each other about major long-term issues and to put the child's best interests first (s 61CA; WA s 69A). That is an encouragement, not an enforceable duty.

What changed in 2024

Until 6 May 2024, the federal Act had a presumption that it was in a child's best interests for the parents to have equal shared parental responsibility. The presumption did not apply where there were reasonable grounds to believe there had been abuse or family violence. Where it did apply and an order for equal shared parental responsibility was made, the court then had to consider whether the child should spend equal time, or substantial and significant time, with each parent.

That presumption has been repealed, and so has the link to time. Now:

(a) there is no presumption either way. The court decides what is in the child's best interests, looking at the factors in s 60CC (WA s 66C), the first of which is the safety of the child and of each person caring for the child;

(b) an order about decision-making no longer says anything about how much time a child spends with each parent. Time is decided separately, also on best interests.

Joint and sole decision-making

A parenting order can now provide for joint or sole decision-making about some or all major long-term issues (s 61D(3); WA s 70(3)). Major long-term issues are issues about a child's care, welfare and development of a long-term nature. The Act's definition includes:

(a) the child's education, present and future;

(b) the child's religious and cultural upbringing;

(c) the child's health;

(d) the child's name;

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

The list is not closed, so other long-term issues can also be major ones. A parent starting a new relationship is not, of itself, a major long-term issue. It can become one if it involves a move that makes it significantly harder for the child to see the other parent.

Joint decision-making

Where an order provides for joint decision-making, each parent must consult the other about each decision covered by the order and make a genuine effort to reach a joint decision (s 61DAA; WA s 70A). A parent does not need to consult the other about day-to-day matters while the child is with them, such as meals or bedtimes, unless the order says otherwise (s 61DAB; WA s 70B).

Sole decision-making

Where an order gives one parent sole decision-making, that parent can make the decisions it covers without consulting the other. Courts treat this as a serious step. It is more likely where parents cannot communicate or cooperate well enough to make decisions together, or where consultation would expose a parent or child to family violence or coercive control. A sole decision-making order can cover only some issues, such as health or education, with joint decision-making for the rest.

Reaching agreement

Most parents settle these questions without a trial, through discussion, family dispute resolution, a parenting plan, or consent orders. Before asking the court to decide a parenting dispute, a parent usually needs a certificate from a family dispute resolution practitioner, although there are exceptions, including family violence and urgency.

Parenting arrangements are often worked out at the same time as the division of property. Although they are separate questions, the care of the children can affect a property settlement, because the court considers each person's future needs, including the care of children under 18.

This article is general information, not legal advice.