When parents separate, the phrase “child custody” is often used to describe where a child will live and how much time they will spend with each parent. Australian family law does not usually use custody language anymore. The Court talks about parenting orders, parental responsibility, living arrangements, time, communication and the child’s best interests.
The short answer is that there is no automatic right to equal time and no current presumption that separated parents must have equal shared parental responsibility. The Court can make arrangements that suit the particular child, with the child’s best interests as the paramount consideration.
What child custody means in current family law
In Australia, parenting arrangements can be agreed informally, recorded in a parenting plan, or made legally binding through parenting orders. Parenting orders are court orders that set out arrangements for a child. They can deal with who the child lives with, how much time they spend with another person, how communication occurs, and who makes decisions about major long-term issues.
The legal source is the Family Law Act 1975 (Cth). Section 64B says a parenting order may deal with where a child lives, time, communication, parental responsibility, dispute-resolution steps, and any other aspect of the child’s care, welfare or development.
If you are at the start of separation, our parenting arrangements service explains how advice can help you understand your options before positions become fixed.
Parental responsibility is not the same as time
Parental responsibility means the duties, powers, responsibilities and authority that parents have in relation to children. The definition appears in Family Law Act 1975 (Cth) s 61B.
Each parent has parental responsibility for a child who is under 18, subject to any court order: s 61C. Importantly, the Act now makes clear that this is the background legal position. It is not a presumption the Court applies when deciding what parenting order to make.
Parental responsibility is about decision-making. It is different from how much time a child spends with each parent. A child might live mainly with one parent while both parents are expected to consult about major long-term issues. In another case, one parent might be given sole decision-making responsibility for particular issues because joint decision-making is unsafe, impractical or not in the child’s best interests.
Major long-term decisions
Major long-term issues are decisions about matters such as education, health, religious or cultural upbringing, the child’s name, and changes to living arrangements that would make it significantly more difficult for the child to spend time with a parent.
If it is safe to do so, and subject to any court orders, parents are encouraged to consult each other about major long-term issues and to treat the child’s best interests as paramount: Family Law Act 1975 (Cth) s 61CA. A parenting order can allocate responsibility for those decisions jointly or solely: s 61D.
Where an order provides for joint decision-making, the people sharing responsibility must consult each other and make a genuine effort to reach a joint decision: s 61DAA. That does not mean every day-to-day decision must be discussed. Section 61DAB provides that, unless the order says otherwise, a person spending time with a child usually does not have to consult about ordinary decisions made during that time, such as what the child eats or wears.
How the Court decides parenting arrangements
The Court’s task is not to reward one parent or punish the other. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
The current best-interests framework is in Family Law Act 1975 (Cth) s 60CC. The Court considers safety, including safety from family violence, abuse, neglect or other harm. It also considers any views expressed by the child, the child’s developmental, psychological, emotional and cultural needs, each proposed carer’s capacity to meet those needs, and the benefit to the child of relationships with parents and other significant people where it is safe to have those relationships.
For Aboriginal or Torres Strait Islander children, the Court must also consider the child’s right to enjoy their culture, including connection with family, community, country and language, and the likely impact of the proposed order on that right.
Our article on the best interests of the child explains that framework in more detail.
Is there still a presumption of equal time
No. The old pathway that connected equal shared parental responsibility with consideration of equal time or substantial and significant time was repealed by the 2024 parenting reforms. Equal time may still be agreed by parents or ordered by the Court in an appropriate case, but it is not automatic.
The practical question is whether the arrangement is safe, workable and in the child’s best interests. Equal time can work well for some children where the parents communicate well, live close enough for school and routines, and can manage conflict away from the child. It can be unsuitable where there are safety issues, high conflict, poor communication, long travel times, very young children with particular needs, or a history of family violence.
The Court can make many different arrangements. Time might be supervised, staged, daytime only, overnight, school-holiday based or supported by conditions. The right arrangement depends on the evidence and the child’s needs.
What helps when negotiating parenting arrangements
Good parenting arrangements are usually specific, child-focused and practical. It helps to think about school days, transport, medical needs, extracurricular activities, cultural connection, special occasions, communication between households and what should happen if a child is sick.
Evidence matters if there is a dispute. Useful material may include school records, medical information, communication records, a record of care arrangements, evidence of family violence or safety concerns, and examples showing whether proposed arrangements have worked in practice.
It usually does not help to frame the dispute as a battle for control. The Court is interested in what protects and supports the child. Parents who keep communication measured, comply with existing orders and show a willingness to focus on the child are generally in a stronger position than parents who inflame the dispute.
What to do before going to court
Many parents must attempt family dispute resolution before applying for parenting orders. Section 60I generally requires an applicant to file a certificate from a family dispute resolution practitioner unless an exception applies, such as urgency, family violence, risk of abuse, or another specified reason.
Our article on preparing for family dispute resolution explains how to approach that process. If agreement is reached, parents can consider applying for consent orders so the arrangement is legally binding. If no agreement is reached, legal advice can help you decide whether court is necessary and what evidence is needed.
A short conversation with a family lawyer can tell you whether your proposed arrangement is realistic, what safety issues need to be addressed, and whether the matter should be negotiated, mediated or urgently filed.
The next step
If you are worried about where your child will live, how much time they will spend with each parent, or who will make major decisions, get advice before you commit to an arrangement. The words used in family law have changed, but the practical issue is the same: your child needs a safe and workable structure.