Sole Custody in Australia: How to Get Sole Parental Responsibility

It is late, the kids are finally asleep, and you are sitting up because their other parent has let them down, yet again. Maybe worse than that. You have typed ‘sole custody’ into Google because you want the other parent out of the daily, out of the decisions, and sometimes just straight up out of the picture.

Here is the straight answer. To start, the Family Law Act does not use the word ‘custody’ any more. What you are actually after is sole parental responsibility, and usually an order that the children live with you. Courts do grant it. And since 6 May 2024 there is no longer a presumption of equal shared responsibility standing in your way – if you can show the courts that there is a real reason that the other parent isn’t going to do the right thing with it.

Me and my team, the child custody lawyers at Justice Family Lawyers, run these applications for a living, and I want to walk you through what ‘sole custody’ really means, when a court will actually give it to you, and what to do next. No legal talk for the sake of it.

What ‘sole custody’ actually means

Let’s clear up the language first, because getting it wrong costs people time.

‘Custody’ is a word the law dropped decades ago. Today there are two parts of the question to consider.

1. Parental responsibility. Who makes the big, long-term decisions for the child. School, religion, serious medical treatment, where they live, changing their name. Each parent starts with parental responsibility for their child, unless a court orders otherwise.
2. Living arrangements. Who the child ‘lives with’ and who they ‘spend time with’. This is set by a parenting order.

So when people say ‘sole custody’ in plain speech, they usually mean two things at once: sole parental responsibility (you make the big calls on your own) and an order that the child lives with you. They are related, but a court can order one without the other. You can hold sole decision-making while the child still spends time with the other parent. You can be the parent the child lives with while decisions stay shared.

Think of it like the difference between making decisions about a household and living in it. Two separate questions, two separate answers.

Each parent has parental responsibility for their child, subject to any court order, under section 61C of the Family Law Act 1975 (Cth). Since 6 May 2024 a parenting order dealing with major long-term issues may provide for either joint or sole decision-making, under s 61D(3). Where it is joint, s 61DAA requires the parents to consult each other and make a genuine effort to reach a joint decision.

What changed on 6 May 2024 (and why it matters for you)

This is the single most important update, and most pages you will read online still have it wrong.

For years the law started from a presumption of ‘equal shared parental responsibility’. In plain terms, the court began with an assumption that both parents sharing the big decisions was in the child’s best interests, and you had to argue your way out of it.

That presumption is gone. The Family Law Amendment Act 2023 came into force on 6 May 2024 and repealed it. There is no longer any starting assumption that shared decision-making is best, because it hasn’t necessarily always been in some co-parenting spaces. If you consider co-parents with high-conflict, coercive control or family violence dynamics – or, when one party is just being difficult or disregarding the ‘sharing’ part, it becomes a bit clearer why this presumption has been removed. The court now decides parental responsibility purely on what is in the child’s best interests, case by case, with no presumption to rebut.

So what does that mean for you? If the other parent is unsafe, absent, or impossible to make a decision with, a well-evidenced application for sole parental responsibility can be more straightforward than it was before 6 May 2024. You are no longer pushing against a default that says ‘share everything’. The court starts with a blank page and looks at the evidence.

When a court grants sole parental responsibility

Let’s be honest about the bar. Sole parental responsibility is not the everyday outcome. The court’s default instinct is that a child benefits from a relationship with both parents, and it will not cut one out lightly. It grants sole responsibility when the evidence shows shared decision-making would not work or would not be safe.

The grounds that come up again and again:

• Family violence or abuse. Toward you or the child. This is the strongest ground, and the reforms sharpened the court’s focus on keeping children safe from harm.
• Substance abuse. Where addiction makes the other parent unable to make sound decisions or keep the child safe.
• Neglect. A pattern of failing to meet the child’s basic needs.
• An absent or disengaged parent. Someone who is not around, cannot be found, or simply will not engage in decisions.
• Entrenched, high conflict. Where the two of you genuinely cannot make a joint decision without it breaking down into conflict, and the child is the one paying for it.

Every one of these ties back to the same test: the child’s safety and best interests. The court now gives greater weight to protecting a child from harm, family violence, abuse and neglect than to the benefit of a relationship with both parents. Name the safety concern, evidence it, and that is the argument that lands.

One more thing worth naming here, because it stops a lot of people before they start. Gender is not a factor.

One of the biggest myths we hear all the time is that the court always favours the mother. Gender doesn’t give you a free pass in court. So if you’re assuming you’ll get full-time care because you’re the mom or won’t be able to because you are the dad, slow down. The law sees parents as equals, and looks at facts and their actions.

And this is often the real reason shared arrangements break down and sole responsibility becomes the sensible ask:

Think about the things that need to fall into place in order for a 50-50 arrangement to work. The parents need to live close to each other. They need to be able to communicate reasonably well. And the child needs to be able to switch between homes without ongoing drama. And let’s be honest, some parents can barely communicate about school shoes without it turning into an argument, let alone a whole 50-50 arrangement.

If joint decision-making is going to collapse into conflict every time, that is exactly the situation sole parental responsibility is built for.

The best interests factors the court applies sit in section 60CC of the Family Law Act 1975, reduced to six core factors since the 2024 reforms, with the safety of the child weighted first.

How to apply for sole parental responsibility

Here is the part people get wrong: you usually cannot walk straight into court. There are steps first.

1. Try family dispute resolution. Before you file a parenting application, you generally have to make a genuine attempt at mediation through an accredited practitioner. Book in family dispute resolution early.
2. Get your s 60I certificate. If mediation does not resolve it, the practitioner issues a section 60I certificate. You generally need that certificate before you can file, unless an exemption applies (family violence and urgency are the common ones).
3. Agree it if you can, and lock it in. If you and the other parent do reach agreement, you do not need a contested hearing at all. You can formalise it through consent orders, which are court-approved, final and enforceable, without the fight.
4. File if you cannot agree. Where safety or conflict rules out agreement, you apply to the Family Court for parenting orders, including sole parental responsibility and a lives-with order.

One tip we give clients that saves a lot of sleepless nights:

You can get interim orders to keep things stable during a period of time when you’re waiting for final orders in court. Let’s say you’ve applied to court and now you’re waiting for a final hearing, and that could be one or two years away. What happens in the meantime? You can ask the court for interim orders, which are temporary orders that can stabilise things.

So if you are worried about the months between filing and a final hearing, you are not stuck. Interim orders can hold the line while the case runs.

Family dispute resolution and the section 60I certificate requirement flow from the parenting provisions of the Family Law Act 1975. Exemptions apply in cases of family violence or urgency.

The evidence that matters (and what not to do)

An application for sole parental responsibility lives or dies on evidence. Not on how strongly you feel, on what you can show.

What actually helps:

• A clear, dated record of incidents: what happened, when, who was there.
• Documents that back up your concerns: police records, apprehended violence orders, medical or hospital reports, messages.
• Evidence of the other parent’s disengagement or unreliability, if that is your ground.
• Anything showing you are stable and have a safe home – you get them to school on time, make medical or dental appointments when needed, and have a fairly good routine.

And the blunt part, because it matters. Do not ever withhold the child from the other parent without an order or proper advice first unless there is a very solid reason to do so. And even then, call a lawyer within days, and do things legally, not on your own. Even if it feels protective, it can backfire hard, because the court looks closely at a parent who unilaterally cuts contact without a safety reason it accepts. If there is a genuine risk, get advice fast and do it the right way. If there is not, withholding can damage the very application you are trying to build.

Can a parent with sole parental responsibility change a child’s name?

Short answer: not on your own, usually not.

Even with sole parental responsibility, you generally cannot unilaterally change your child’s name without either the other parent’s consent or a court order. A name is treated as a big long-term decision, and it stays sensitive even where one parent holds most of the decision-making. If you want to change it, get consent in writing or apply to the court. Do not just lodge the change and hope.

What to do next

If you are reading this at 11pm with a knot in your stomach, here is the honest next step. Do not make a big move on your own, and do not sit on it either. Talk it through with someone who understands these matters and how they are likely to play out.

Me and my team of child custody lawyers do this every week. Book in a chat, no pressure, no judgment, just honest advice on where you actually stand and what a sole parental responsibility application would look like for you. Call 1300 614 732 or send us a message.