Can Both Parents Be the Primary Carer?

Someone has told you the other parent is the primary carer. Maybe it came up in an argument, maybe it arrived in a letter from their lawyer, and now you want to know what it means. Is it a title somebody actually holds or just a description of who does more of the school runs?

The short answer is that it depends which system you are asking about. In family law, ‘primary carer’ is not a legal status. It is generally used to describe the parent or carer who has the greater responsibility for a child’s day to day care. The Family Law Act does not define a primary carer and no court appoints one, so where care is genuinely shared there is nothing stopping both of you saying you do the primary caring. However, with Services Australia it is a status, and only one person at a time can hold it.

Below is what the label changes, what it does not, how a court works out who a child mainly lives with, and what it takes to change that once orders are in place. For the wider picture, our child custody lawyers page covers the process end to end.

Can both parents be the primary carer?

In family law, yes, in the sense that matters. “Primary carer” describes who does the day-to-day caring. It is not a role a court hands out and it comes with no separate set of powers attached.

What a court actually decides is who the child lives with, who they spend time with, and who makes the major long-term decisions. That last one is parental responsibility, and each parent has it for their own child unless a court orders otherwise (Family Law Act 1975, s 61C). Nowhere in that list is a primary carer named.

So where care is genuinely shared, both of you can fairly describe yourselves as doing the primary caring. Neither of you owns the term.

The same instinct shows up elsewhere. In a paid parental leave dispute decided on 24 June 2025, a Fair Work Commission Full Bench held that “Primary” does not mean “only”.

If care is not equal, the practical position shifts. Schools, Services Australia and the courts will often look at who is mainly doing the caring.

What is a primary carer?

A primary carer is the person who does most of the everyday caring for a child.

In practice that is the person the child usually wakes up with, the one managing meals, bedtime, medication, uniforms and appointments, and the one the school calls first. It does not have to be a parent. A grandparent or another guardian can be a child’s primary carer. In many shared care scenarios, both parents are the primary carer in the time they are with their children.

But nothing in this definition is legal. It describes a routine, which is precisely why two people can both be doing it.

Primary carer in family law vs Services Australia

This is where a lot of people get caught out. The family law meaning and the Services Australia meaning are not the same, and they do not have to match.

Family law. The court decides who the child lives with, who they spend time with, and who makes the major long-term decisions. It does not appoint a primary carer.

Parenting Payment. Services Australia is clear that “only one person at a time can be their principal carer”. Where two people share care equally, they have to nominate which of them it is.

Family Tax Benefit. Services Australia looks at care percentages and can make part payments to both parents based on the amount of care they have. It isn’t simply based on the exact amount of care, but parents who each have more than 35% of care can both be eligible for payments for the same child.

The part people do not expect: a 50/50 parenting order does not settle this for you. For Parenting Payment, one of you is still the person recorded as the principal carer. That is a decision about a payment, not a finding about who the better parent is, and it does not change a word of your parenting orders.

Primary carer responsibilities

The role is practical rather than legal, and it usually looks like this:

• Day-to-day care. Meals, sleep, hygiene, getting the child where they need to be, every day.
• Health. Booking and attending medical and dental appointments, managing medication, following up specialists.
• Education. School enrolment and communication, homework, permission slips, and being the emergency contact.
• Routine and emotional support. Holding the routine steady and being the adult the child goes to first.
• Communication. Keeping the other parent informed about the child’s health, schooling and wellbeing.

Doing more of that does not, on its own, give you authority over the major long-term decisions, unless there is a court order in place granting you sole parental responsibility. Parental responsibility is decided separately, and it is not based on who does more or less care.

How the court decides who a child’s primary carer is

If you cannot agree on parenting matters, you can apply to the Federal Circuit and Family Court of Australia to decide. The Family Court and the Federal Circuit Court merged into the FCFCOA in 2021. It does not start by asking who the primary carer is. It asks what is in the child’s best interests, and the answer to that usually settles who the child mainly lives with.

Since 6 May 2024 the best interests factors are the six in s 60CC of the Family Law Act 1975:

• the safety of the child and of each person who cares for them
• any views the child expresses
• the child’s developmental, psychological, emotional and cultural needs
• each proposed carer’s capacity to meet those needs
• the benefit of a relationship with both parents, and with other people significant to the child, where it is safe
• anything else relevant to that particular child

For an Aboriginal or Torres Strait Islander child there is a further factor: the child’s right to connect with and enjoy their culture.

Two things worth correcting while you are here. The presumption of equal shared parental responsibility was removed on 6 May 2024, so there is no starting assumption about how decisions get made. Both parents have shared parental responsibility from when their child is born, and it was a starting point when making parenting orders to keep shared parental responsibility, unless there was a good reason to give sole parental responsibility to one parent. This presumption often led to shared care arrangements being considered, even though there was never a requirement for children to spend equal time with each parent.

If the courts are looking at which parent to give the majority of time with children, they look at what’s going to be best for the child. Does the child have a stronger emotional bond with either parent? Who has traditionally been the primary carer? Who has been more available for school drop-offs, activities and extracurriculars? Have there been any safety concerns with either parent? The court weighs those together and makes a holistic decision about who the child mainly lives with and how time is shared, rather than scoring one factor against another.

Changing the child’s primary carer

Parenting arrangements are not meant to be frozen. Final orders are not casually reopened either.

Kids might get older, parents might move, and sometimes what worked two years ago just doesn’t make sense anymore. And so the court does allow for modifications of parenting orders, but there needs to be a significant change in circumstances.

That threshold now sits in the Act. Under s 65DAAA of the Family Law Act 1975, added on 6 May 2024, a court asked to reconsider final parenting orders must consider whether there has been a significant change of circumstances, and must be satisfied that reconsidering the orders is in the child’s best interests.

That test applies to final orders, not to an informal arrangement or a parenting plan, which the two of you can change by agreement at any time. If you are both willing, family mediation is the step before court, and what you agree there can be turned into consent orders so it becomes enforceable. The court sets out the process for changing parenting arrangements.

Be realistic about what you are asking for. Courts are cautious with young children and lean towards stability. Given a choice between the arrangement that has been running and an untested one, they would rather keep the tried and tested version. That lean is towards the status quo, the arrangement already in place, not towards one parent over the other, which is worth remembering if you have read the mother vs father custody statistics.

It does go the other way. In one relocation matter, one parent opposed the move because it would cut down their time with the child, and they were right that it would. The court approved it anyway, because staying put would have placed serious financial and emotional pressure on the parent the child lived with, and that instability was not in the child’s best interests.

A 2018 appeal that left a change of home in place

One appeal makes the point plainly. In Ryder & Donaldson [2018] FamCAFC 260, the parents separated in 2014. In 2017 the trial judge decided the child should live with the father. An allegation of child sexual abuse was raised and the trial judge did not accept it on the evidence. The appeal was dismissed in December 2018.

What decided it was not the disruption of moving a child. It was the risk to the child’s relationship with one parent if the arrangement stayed as it was, and the court treated that risk as the more serious one.

Do you need legal help with a parenting arrangement?

If you are not sure whether what you have been told about the primary carer is right, one conversation usually settles it. On a first call with me and my team we ask what the arrangement looks like now, what changed, and what you want it to look like. Then we tell you whether that is realistic and what it would take. No pressure, no judgment, and if you do not need a lawyer we will say so.

The earlier you get advice the more options you have, because an arrangement that has been running a long time is harder to move. Call 1300 614 732 or send us a message to book a free discovery call, or start with our child custody lawyers page.