Family Law Parenting Matters in Australia: Expert Guidance on Child Custody & Care Arrangements

When relationships break down one of the most sensitive issues families face is deciding on the care and upbringing of children. In Australia, the Family Law Act 1975 (CTH) provides a pathway to ensure that parenting arrangements prioritise the best interests of children and keep children, and families, safe from harm.

Understanding Parenting Matters

Parenting matters can include decisions about:

1. Parenting arrangements – being where children will live and how much time they will spend with each parent. We often hear people discuss this as “custody”, a term borrowed from the American system, however in Australia we don’t use the term custody and rather use the term “parenting arrangements”.

Why not “custody”? This is a good question; one answer is that the term “custody” has connotations of ownership and in Australia we avoid using phrasing which suggest that children are owned by their parents. It also talks to the importance of parenting arrangements in Australia being focused on the rights of children rather than the rights of parents.

When looking at parenting arrangements most lawyers, and the Court, will talk about where a child primarily lives (if the child is not living between 2 homes) and how much time, and in what circumstances, a child will spend time with the other parent.

2. Parental responsibility – being how major, long-term decisions, are made for children. Prior to a separation parents typically make decisions in relation to their children together in a manner that works for their relationship. After separation there needs to be a discussion as to how these decisions will be made as often parents will have alternate views about what decisions are in the best interests of their children.

The kinds of decisions that are considered “major, long-term decisions” are things like what school a child attends, whether a child receives, or does not receive medical treatment and what religion a child practices.

What does Best Interest of the Child mean?

The Act states that the paramount consideration when looking at parenting matters is what is in the best interest of the child, but how is the best interest of the child determined.

Under section 60CC(2) of the Act, when determining what is in the best interests of a child the Court must consider:

1. what arrangements would promote the safety of the child and each person who has care of the child (including any history of family violence, abuse or neglect and any family violence order)
2. any views expressed by the child (it is important to understand the Court can consider a view of the child however make a decision that is not in accordance with that view;
3. the developmental, psychological, emotional and cultural needs of the child;
4. The capacity of each person who has or is proposed to have parental responsibility for the child for the child’s developmental, psychological, emotional and cultural needs;
5. The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
6. Anything else that is relevant to the circumstances of the child.

Where are child is of Aboriginal or Torres Strait Islander decent the Court must also consider the rights of the child to connect enjoy their culture and engage with Country and how any proposed Order may affect those rights.

Documenting Parenting Agreements

Where you have an agreement in relation to parenting it is important that it is documented, and this can be done through a Parenting Plan or Consent Orders for Parenting.