Parenting & Children

In Chinese-language usage, these matters are often described as “custody” or “fighting for custody”.

Under the Australian family law framework, however, the court now more commonly uses concepts such as “parenting arrangements”, “decision-making responsibility” and “who the child spends time with”, rather than “custody”.

Parenting arrangements generally involve two core questions: who is responsible for important long-term decisions about the child; and how much time the child spends with each parent.

In other words, what clients understand as “custody” is, in legal terms, broken down into a more specific set of arrangements, including:

The Federal Circuit and Family Court has confirmed that a parenting order can deal with the child’s living arrangements, how time is spent, methods of communication and other care and development arrangements considered appropriate by the court.

Under the Australian legal framework, “I want custody” is therefore generally not a single question, but a structured set of arrangements about the child’s way of life.

In parenting matters, many Chinese-speaking clients naturally interpret “custody” as “who can make decisions”.

Under Australian family law, however, who cares for the child day-to-day and who is responsible for major long-term decisions are two related but distinct questions.

Parenting arrangements often include who has responsibility for the child’s major long-term matters.

These major long-term issues generally include the child’s education, major medical decisions, religious upbringing, change of name and long-term place of residence.

In a single case, it is entirely possible to see arrangements in which the child lives mainly with one parent, but both parties continue to share certain major decisions; or, because of serious conflict or safety factors, the court decides that it is in the child’s interests for one party to be solely responsible for specific decisions.

In other words, where the child lives does not automatically determine who holds all decision-making power; and conversely, sharing certain decision-making responsibilities does not mean the child must spend equal time with each parent.

Under Australian family law, the central criterion in parenting matters is the best interests of the child. This has been further reinforced by recent family law reforms. The court is not assessing which parent is “more suitable”.

It is looking at what arrangement, in light of the child’s actual circumstances, best meets the child’s interests at this stage of their life. In practice, the court will generally consider the following factors:

Many people assume that, under Australian law, children must spend equal time with each parent, or that the court will order 50/50 if one party asks for it. This is not accurate.

Under the current legal framework, the court does not start from a fixed time ratio. It works directly from the child’s best interests. The starting point for time arrangements is not “50/50”, but the child’s current reality.

In different cases the outcome may be very different. For example:

The real question is usually not “can I get half the time?”, but “what arrangement is most stable and most realistic for this child?”. When considering how time should be divided between parents, the court will focus on:

Some cases also involve the child’s views, but the court generally weighs these in light of the child’s age and maturity, rather than treating them as determinative.

“Going to court” is not always necessary, but it is usually advisable to formalise agreed parenting arrangements.

The Federal Circuit and Family Court has expressly stated that, where the parties have already agreed on parenting arrangements, they can apply for consent orders, turning the agreement into legally binding court orders.

The court’s website also makes clear that consent orders can be used for parenting arrangements, and that, if a parenting order is made, every person bound by the order must comply with it.

In practice, many separated parents start with informal arrangements: where the child lives, how weekends are alternated, and how school holidays are divided. This may work in the short term.

However, if one party later changes their mind, alters times unilaterally, refuses changeovers, or unilaterally decides to move or change schools, without formal documentation, the situation often becomes much harder to manage.

For this reason, many cases that do not begin in serious litigation are still formalised through consent orders once negotiations have matured.

Family Dispute Resolution

The Federal Circuit and Family Court has expressly stated that, with limited exceptions, the parties must generally attempt Family Dispute Resolution (FDR) before applying for a parenting order.

Where the parties have tried FDR but have not reached agreement, or where the FDR practitioner considers the matter unsuitable for FDR, a section 60I certificate will generally be issued.

The Federal Circuit and Family Court has further explained that this certificate is a common prerequisite to applying for a parenting order, and that it is generally valid for 12 months.

The Attorney-General’s Department has further explained the framework for the use of a section 60I certificate, and has listed the different situations in which a certificate may be issued, for example:

In certain circumstances, however, a certificate is not required, for example in cases involving family violence, child abuse or urgency.

In parenting matters, family violence, child safety and the risk of a child being exposed to a conflict environment are among the issues most heavily weighted by the court.

The focus of parenting arrangements is on the child’s needs and welfare, and the recent family law reforms have further concentrated the analysis around the child’s best interests and safety.

This means that, where safety factors are involved, this may directly affect the court’s overall view of parenting arrangements. In practice, the kinds of situations that typically attract close attention from the court include:

In such cases, the court does not look only at “whether there is a criminal conviction” or “whether there is an AVO”.

It assesses, on a holistic basis, whether the child is in a safe environment, and how the relevant risks actually affect the child.

The key focus is typically whether the child may be harmed, whether the child continues to be exposed to a high-risk environment, and whether this needs to be addressed through specific arrangements.

Based on this assessment, when making a parenting order the court may adjust the way contact and arrangements occur, for example by requiring supervised contact, restricting the method or timing of changeovers, or, where necessary, allocating sole responsibility for certain major decisions to one parent.

As a matter of legal structure, divorce and parenting arrangements are different issues. Divorce itself addresses whether the marriage has ended; parenting arrangements are a separate matter.

Australia adopts a no-fault divorce principle and, provided the statutory conditions are met, a divorce application can generally be filed.

In a divorce application, however, where the parties have children under 18, the court will generally still want to be satisfied that proper arrangements are in place for those children.

In a sole application for divorce involving children under 18, the court generally requires confirmation that the children’s living and care arrangements are appropriate.

From a practical perspective, although divorce and parenting are two independent issues, they are often interwoven in terms of timing.

Many clients begin by asking “how do I get divorced”, only to find that the parenting arrangements actually need attention more urgently.

Some parenting arrangements are relatively simple, for example where communication is smooth, the arrangements are broadly agreed and there are no safety risks.

In such cases, the parties can first reach agreement through negotiation or FDR, and then formalise the arrangement through consent orders.

In many real-world cases, however, the real difficulty is not “how the time is divided”, but how to design a workable arrangement and how to protect the child in the midst of conflict. For example:

In these situations, the role of a lawyer is generally not just “to communicate on your behalf”.

It is to help you identify the key issues, organise the evidence, control the pace and prevent the situation from deteriorating further.

When handling parenting matters, we generally do not start from abstract positions. We start from the child’s actual life. We help clients map out:

For cases that can be resolved by negotiation, we focus on making the arrangements specific and workable, rather than leaving them at the level of principle. For cases already in dispute or carrying risk, we focus on:

In parenting matters, what ultimately matters is often not who expresses themselves most forcefully, but who can present the case clearly, stably and credibly around the child.

The NS Legal family law team has long handled divorce, separation and related parenting matters.

We have detailed and practical experience with post-separation parenting arrangements in high-conflict cases, disputes about time-with, parenting arrangements against a family violence background, and matters involving relocation, major long-term decisions and court proceedings.

We understand that, when clients come to us with a “custody” issue, what they are really worried about is often not a legal term itself.

It is whether the child will have a stable life going forward, whether they will still be able to be a normal part of the child’s growing up, and whether the situation might escalate beyond their control.

In handling these cases, we work to bring the focus back to the child’s actual circumstances and to the parts of the case that really matter, rather than letting the matter remain stuck in emotional confrontation.

For clients with different backgrounds, different risk profiles and at different stages, we provide path recommendations that fit the particular case, with the aim of protecting the child’s interests and the client’s lawful rights while controlling time, costs and unnecessary attrition.

If you are facing parenting issues, or want to understand your legal options in a parenting matter, please contact the NS Legal family law team.

We will provide clear, practical and actionable advice based on your specific circumstances.