Custody in Australia: What Separated Parents Need to Know About Parenting Arrangements

Family Law Misconceptions, Parenting Arrangements, W & G Lawyers

Custody in Australia: What Separated Parents Need to Know About Parenting Arrangements

by admin

This article was written by Jialin Liu Solicitor at W & G Lawyers.

Many parents walk into a family law firm with the same opening line: “I want full custody” — or “My ex says the kids have to be split 50/50.” Behind both statements are misconceptions about Australian family law that are remarkably common, and that often make an already difficult situation harder than it needs to be.

This article aims to clarify the key concepts before you enter any negotiation or legal process.

Part One: Three Core Concepts Under Australian Family Law

Australian family law uses a specific set of terms that don’t always match the language people use in everyday conversation. Understanding these three concepts is the foundation for everything that follows.

1. Parental Responsibility

This is the concept in Australian law that comes closest to what most people mean by “custody” — but the two are not the same.

Under section 61B of the Family Law Act 1975, parental responsibility is defined as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

Parental responsibility covers major long-term decisions about a child’s life, including:

  • Which school the child attends
  • Significant medical decisions (such as surgery or long-term treatment)
  • Religious upbringing and cultural education
  • Passport applications and permission to travel overseas
  • Representing the child in legal proceedings

An important practical distinction: parental responsibility covers major long-term decisions only. Day-to-day decisions — what the child eats, how they spend a Saturday afternoon — are made by whichever parent the child is with at the time, without any need to consult the other. Many unnecessary conflicts arise from confusing these two levels of decision-making.

Under section 61C of the Family Law Act 1975, unless a court order provides otherwise, each parent retains parental responsibility after separation. This means that even if a child primarily lives with one parent, the other parent still has an equal say in major decisions about that child’s upbringing.

2. Who the Child Lives With (Lives With)

This answers the question of where the child lives day-to-day, and is entirely separate from the question of parental responsibility.

A child living primarily with one parent does not mean the other parent loses their role in major decisions. The two issues are considered independently under Australian family law.

3. Time Spent With Each Parent (Spends Time With)

This replaces older terms such as “access” and “contact,” which are no longer used in Australian family law.

Time arrangements are highly flexible. They can include set days each week, alternate weekends, holiday rotations, or any other arrangement that both parents agree to and that serves the child’s needs.

The underlying principle across all three concepts is this: Australian family law does not treat children as objects to be divided between parents. The child’s needs come first, and all arrangements flow from there.

Part Two: Five Common Misconceptions

Misconception One: Children must be split 50/50

This is the most widespread — and most conflict-generating — misconception in Australian family law.

The reality: equal time has never been an automatic entitlement for either parent.

On 6 May 2024, the Family Law Amendment Act 2023 came into force, formally abolishing the “presumption of equal shared parental responsibility.” The explanatory memorandum to the legislation specifically notes that the presumption was repealed because it had created widespread community confusion — leading people to believe that equal time was a legal default, when it never was.

According to a 2026 research report by the Australian Institute of Family Studies (AIFS), approximately 14% of families in the Child Support Program had shared care arrangements in 2024 — defined as the child spending between 35% and 65% of nights with each parent. Of these, strictly equal time arrangements (48%–52% of nights with each parent) applied to around 9% of cases. The most common arrangement by far remains mother as primary carer: in approximately 57% of cases, children spent 87%–100% of their nights with their mother.

What determines the time a child spends with each parent is not what either parent wants, but what arrangement best serves that particular child’s needs.

Misconception Two: Whoever the child lives with has “custody”

This confuses the concept of “lives with” and parental responsibility — two distinct issues under Australian law.

Where a child primarily lives affects who manages their daily care. It does not strip the other parent of their role in major long-term decisions. Unless a court specifically orders that one parent have sole parental responsibility, both parents retain decision-making authority over significant matters such as education, medical treatment, and international travel.

Misconception Three: Courts favour mothers

Australian family law is explicitly gender-neutral.

The Family Law Act 1975 imposes no presumption in favour of either parent. The sole criterion is the best interests of the child.

In practice, mothers are the primary carer in the majority of cases — but this reflects existing family arrangements at the time of separation, not a legal bias. Courts assess each parent’s actual capacity to meet the child’s needs, the quality of each parent’s relationship with the child, and any safety considerations. Gender is not a factor.

Misconception Four: Once children are old enough, they can decide for themselves

Courts take children’s views into account — but views are not the same as decisions.

Under section 60CC of the Family Law Act 1975, a child’s expressed wishes are one of several factors a court must consider, weighted according to the child’s age and maturity.There is no fixed age at which a child gains the legal right to choose. A mature fifteen-year-old’s views will carry considerable weight, but they remain one input into the court’s overall assessment — not a determining factor on their own.

Misconception Five: An informal or verbal agreement is enough

Many families operate on verbal agreements, particularly in the early stages of separation when the relationship between parents is still workable. The problem is that verbal agreements offer no legal protection if circumstances change or one party stops complying.

Australian family law provides several levels of formal arrangement:

  • Parenting Plan: a written agreement between parents, but not enforceable by a court
  • Consent Order: a parenting plan submitted to and approved by a court — legally binding, and the recommended approach for most families
  • Parenting Order: made by a court when parents cannot reach agreement

Only the latter two give you a legal remedy if the other party fails to comply.⁸

Part Three: How Courts Decide — The Best Interests Standard

When parents cannot agree and a court must intervene, the single governing principle is: what arrangement is in this child’s best interests?

Following the 2024 amendments, the Family Law Act 1975 sets out six factors courts must consider under section 60CC:

  • The safety of the child and anyone who cares for them (including any history of family violence and existing protection orders)
  • The child’s own views
  • The child’s developmental, psychological, emotional and cultural needs
  • Each proposed carer’s capacity to meet those needs
  • The benefit to the child of maintaining relationships with both parents and other significant people, where it is safe to do so
  • Any other circumstances relevant to the particular child

Safety is the paramount consideration. Where there is a history of family violence, abuse, or neglect, the court will give this factor the greatest weight — and it can directly affect both time arrangements and the allocation of parental responsibility.

One mechanism worth knowing about is the Independent Children’s Lawyer (ICL). In disputed or high-risk cases, a court may appoint an ICL to represent the child’s interests independently — not on the instructions of either parent, and not simply following the child’s stated wishes, but forming an independent view of what is best for that child. Following the 2024 amendments, an ICL is required to meet directly with any child aged five or over, unless the child does not wish to meet.

Part Four: How Arrangements Are Reached

Not every separated family ends up in court. Australian family law actively encourages parents to reach their own arrangements, and litigation is intended as a last resort rather than a first step.

The available pathways, from least to most formal, are:

  • Direct negotiation between parents: the most flexible and least costly option for families with good communication
  • Family Dispute Resolution (mediation): facilitated by an accredited practitioner; attendance is generally a legal requirement before applying for court orders¹⁰
  • Parenting Plan: formalises an agreement in writing, but cannot be enforced by a court
  • Consent Order: submits an agreement to the court for approval; legally binding without the need for contested litigation
  • Court proceedings: available when agreement cannot be reached or where there are safety concerns that require urgent intervention

Most parenting arrangements are reached through negotiation or mediation rather than litigation. However, reaching an agreement without legal advice is not the same as reaching an informed agreement. Understanding your legal position before you negotiate often leads to better outcomes — and avoids disputes that are far more costly to resolve later.

Part Five: When You Should Seek Legal Advice Early

The following situations may appear routine but involve significant legal rights. If any of these apply to your family, we recommend seeking advice before the situation develops further:

  • The other parent wants to relocate with the children — interstate or overseas — this engages a specific legal framework around relocation, and the consequences of handling it incorrectly can be serious
  • A verbal agreement has been working, but the other party has stopped following it — without a formal order, your options are extremely limited
  • Your child is refusing to spend time with the other parent — this is a legally complex situation, and how it is handled can significantly affect future arrangements
  • A school, hospital, or government agency is asking for formal documentation of parenting arrangements — verbal explanations will not resolve these requests
  • The other parent has unilaterally changed the child’s school or made a significant medical decision without consulting you — this may constitute a breach of shared parental responsibility

Every family’s circumstances are different, and there is no universal answer. But one thing is consistent: the earlier you understand your legal position, the more options you have. Waiting until a dispute escalates significantly raises the cost — financially and emotionally — of resolving it.

References

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 Disclaimer

This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.

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