If you have separated and you are worried about your children, the first word most people reach for is ‘custody’. It is the word almost everyone types into a search bar, and it is the word most of us grew up hearing. It is also a word that Australian Family Law stopped using a long time ago.
That is not a piece of pedantry. The language changed for a reason, and the reason tells you something genuinely useful about how these decisions are made and what the Court is weighing up. This article explains what replaced it, what a Court is actually deciding, and how the great majority of parenting arrangements are really settled.
Reforms that commenced in 1996 removed the words ‘custody’ and ‘access’ from the Family Law Act 1975 and replaced them with ‘residence’ and ‘contact’. A further round of reform in 2006 replaced those terms in turn, and the language used ever since is plainer: who a child lives with, who a child spends time with, and who holds parental responsibility.
The shift was deliberate. ‘Custody’ carries an idea of possession, and with it the idea that one parent wins and the other loses. The Act is built around a child’s needs and the responsibilities parents carry, not around an entitlement either parent holds.
You will still see ‘custody’ in quotation marks on our parenting arrangements page, because it is the word people search for. When a lawyer talks about parenting arrangements, they mean the same thing you mean by ‘custody’.
Whether you agree between yourselves or a Court decides, three separate questions are on the table, and it helps to keep them apart.
Parental responsibility is not the same thing as time. A parent may share decision making about a child’s schooling and medical care even though the child lives mostly with the other parent. Treating time and decision making as one bundle is a common misunderstanding, and it can turn a workable negotiation into a fight about nothing.
When a Court makes a parenting order, the best interests of the child are the paramount consideration. Not the fairness of the split between the parents, and not what either parent feels they are owed.
In working out what is in a child’s best interests, the Court may consider matters including the safety of the child and of the people who care for them, the child’s views depending on their age and maturity, the child’s developmental, psychological, emotional and cultural needs, each parent’s capacity to meet those needs, and the benefit to the child of a relationship with both parents where it is safe to have one. Where a child is Aboriginal or Torres Strait Islander, their right to enjoy their culture is a specific consideration.
Two things surprise people. Safety sits at the front of that list rather than somewhere in the middle, and there is no starting presumption of equal time. Reforms that took effect in May 2024 removed the presumption of equal shared parental responsibility, and with it the pathway that led many people to assume the law begins at fifty fifty. It does not. Equal time is one outcome among many, reached because it suits a particular child, not because it is the default.
This is the part that gets lost. Most separated parents settle their arrangements without a judge deciding anything. There are three levels of formality, and choosing the right one matters more than people realise.
Before you can file a parenting application, you generally need a section 60I certificate from a registered family dispute resolution practitioner, confirming that you have attempted mediation or that mediation was not appropriate. There are exceptions, including where there has been family violence, where there is a risk to a child, or where a matter is urgent. Our Family Lawyers in Shellharbour and Wollongong can tell you quickly whether an exception applies to you.
Children grow, jobs move, and an arrangement that suited a three year old rarely suits a teenager. A parenting plan or an informal arrangement can be changed whenever both parents agree.
Final parenting orders are harder to move, and deliberately so. As a general rule the Court will not reopen final orders unless there has been a significant change of circumstances since they were made, because children benefit from stability and from not being litigated over repeatedly.
Parenting and money are legally separate, and they must never be traded against each other. A parent cannot withhold time because payments have stopped, and a parent cannot stop paying because time has been refused.
They are connected in one specific way. The number of nights a child spends in each parent’s care feeds directly into a child support assessment, and crossing certain thresholds changes the figures. It is worth understanding that before you agree to a schedule, rather than after.
Everything above is general information about how the law works. It is not advice about your family, because no article can be. The details that decide an outcome usually only come out in a conversation.
The sooner you understand the framework, the calmer the conversation with the other parent tends to be. That is usually worth more to a child than anything won in a courtroom.
If you are ready to move forward or you simply want to understand where you stand, contact South Coast Family Law Group today (02) 4202 6644. Your privacy is paramount. All enquiries are confidential.
