Key Takeaways
- There is no automatic presumption that children will live with one parent over the other.
- The Court focuses solely on what is in the best interests of the child.
- Shared parental responsibility does not mean equal time.
- Parenting arrangements can be agreed between parents or decided by the Court.
- Early legal advice can help you protect your rights and your children’s wellbeing.
When a relationship ends, one of the most important – and often most emotional – issues to work through is how the children will be cared for moving forward.
Although many people refer to “child custody,” Australian family law has moved away from that term. The Family Law Act 1975 (which applies across all states and territories, including NSW) focuses on parenting arrangements and parental responsibility – not custody.
What Does the Law Say About Child Custody in Australia?
As of May 2024, the law no longer includes a presumption that it is in a child’s best interests for both parents to have equal shared parental responsibility.
Instead, the Court looks at the facts of each case to determine what arrangements best support the child’s safety, wellbeing, and development.
Parental responsibility refers to all the duties, powers and authority parents have in relation to their children – including decisions about health, education, and religion. In some cases, the Court may allocate this responsibility to one parent or both, depending on the circumstances.
It’s important to note that parental responsibility is separate from the time a child spends with each parent. A child may live primarily with one parent while both parents share parental responsibility – or vice versa.
How Is “Custody” (Now Parenting Arrangements) Decided?
There are two main ways parenting arrangements are made:
- By agreement – Parents can negotiate arrangements between themselves. These may be recorded in a parenting plan or formalised through consent orders.
- By Court order – If agreement cannot be reached, the Court can determine the arrangements based on the best interests of the child.
Following the 2024 reforms, the Court now considers a streamlined list of six core factors, including:
- The child’s safety, including protection from abuse, neglect or family violence.
- The views of the child (depending on age and maturity).
- The nature of the child’s relationships with parents and others.
- The capacity of each parent to meet the child’s developmental, emotional and financial needs.
- The effect of any proposed changes to the child’s circumstances.
- Anything else that’s relevant to the child’s best interests.
Who Will the Child Live With?
There’s no one-size-fits-all outcome. The Court (or the parents, if an agreement is reached) may decide the child should live primarily with one parent and spend time with the other – or that a shared care arrangement is appropriate.
What matters is that the arrangement promotes the child’s stability, safety and ability to thrive. The outcome will depend on your unique family circumstances.
Why Early Legal Advice Helps
Parenting matters can be emotional and legally complex. Getting advice early can help you:
- Understand your rights and obligations,
- Clarify what outcomes are realistic, and
- Reach child-focused arrangements that reduce conflict and protect relationships.
If Court proceedings become necessary, early preparation can also strengthen your position and ensure your child’s best interests are front and centre.
Need Help With Parenting or Custody Matters?
At Clarity Lawyers, we help people navigate separation with empathy and clear, strategic advice. Whether you’re working through parenting arrangements or facing court proceedings, our experienced team is here to support you and your family.
Contact us for a confidential conversation about your next steps.
