When a relationship ends and children are involved, one question dominates: who will the children live with, and how will day-to-day care be shared? Many parents still describe this as “child custody” — but Australian family law moved away from that term nearly thirty years ago. Today, the law speaks of parenting arrangements, parental responsibility, and the time a child spends with each parent. The framework changed again on 6 May 2024, when significant amendments to Part VII of the Family Law Act 1975 (Cth) came into force. This article explains how the Federal Circuit and Family Court of Australia now decides these matters.
A Note on Terminology: Why “Custody” Is the Wrong Word
The word “custody” has not appeared in Australian family law since the Family Law Reform Act 1995 (Cth) replaced it. Parliament considered the language adversarial — implying ownership of children rather than responsibility for them.
The current language under the Family Law Act 1975 (Cth) is more careful. The Court makes parenting orders that deal with three separate questions:
- Parental responsibility — the duty and authority to make decisions about a child’s long-term welfare.
- Who the child lives with.
- The time the child spends, and the communication the child has, with each parent and other significant people.
The shift matters in practice. A parent can have decision-making responsibility without the child living with them most of the time. Equally, a child can spend substantial time with both parents without the parents agreeing on schooling or medical choices. The Court treats these as distinct questions.
The Paramount Consideration: The Best Interests of the Child
Section 60CA of the Act sets the foundation: in deciding whether to make any parenting order, the best interests of the child are the paramount consideration. Not the wishes of either parent. Not the convenience of the household arrangements. The child’s welfare comes first, and everything else is weighed against it.
What “best interests” actually means is set out in section 60CC. Before May 2024, that section listed two “primary” considerations and thirteen “additional” considerations. The list was long, hierarchical, and — according to the Australian Law Reform Commission’s 2019 review — confusing for parents and lawyers alike.
The new section 60CC, in force since 6 May 2024, replaces all of that with a shorter, non-hierarchical list of six general factors that apply to every parenting decision the Court makes.
The Six Factors Under the New Section 60CC
The Court must consider each of the following when deciding what arrangements are in a child’s best interests:
- What arrangements would promote the safety of the child and each person who cares for the child — including safety from family violence, abuse, neglect, or other harm.
- The child’s views. Any views expressed by the child, with the weight given to them depending on the child’s age, maturity, and the circumstances in which the views were formed.
- The child’s needs. The developmental, psychological, emotional, and cultural needs of the child.
- Each parent’s capacity. The capacity of each person who has, or is proposed to have, parental responsibility to provide for those needs.
- The benefit of relationships. The benefit to the child of being able to have a relationship with each parent and other significant people, where it is safe to do so.
- Anything else relevant. Any other circumstance specific to the child.
A separate provision, section 60CC(2A), requires the Court — when assessing the safety factor — to take into account any history of family violence, abuse, or neglect, and any family violence orders that apply or have applied. Section 60CC(3) adds further considerations where the child is Aboriginal or Torres Strait Islander, including the right to enjoy their culture and the support available to do so.
The factors are not ranked. The Court weighs them according to the circumstances of each case. In one matter, safety concerns will dominate. In another, the child’s views or developmental needs may carry more weight.
Parental Responsibility: What Changed in 2024
For nearly twenty years, the Act contained a presumption of equal shared parental responsibility. If the Court made an order for equal shared parental responsibility, it then had to consider whether the child should spend equal time, or substantial and significant time, with each parent.
That presumption has been repealed. As of 6 May 2024, there is no longer a starting assumption that parents should share decision-making equally, and no automatic step that links decision-making to time arrangements.
Section 61D of the amended Act now allows the Court to make orders for joint decision-making or sole decision-making on major long-term issues — schooling, health care, religion, name, and significant changes to living arrangements — based purely on what is in the child’s best interests in each case. Where joint decision-making is ordered, section 61DAA requires the parents to consult one another and make a genuine effort to reach a joint decision.
It is worth saying clearly: the law has never required children to spend equal time with each parent. The repealed presumption only ever applied to decision-making, and any link to time was always conditional on the child’s best interests. The amendments simply remove confusion that had built up around how those provisions worked together.
Old Framework vs New Framework
The differences between the pre-2024 position and the current position are significant in practice.
| Issue | Before 6 May 2024 | From 6 May 2024 |
| Best interests factors | Two primary + thirteen additional, hierarchical | Six general factors, non-hierarchical |
| Parental responsibility | Presumption of equal shared parental responsibility | No presumption — assessed case by case |
| Equal time | Court required to consider equal time if presumption applied | Removed; time is decided purely on best interests |
| Decision-making language | “Equal shared parental responsibility” | “Joint decision-making” or “sole decision-making” on major long-term issues |
| Family violence | One of multiple factors | Embedded across the safety factor and a dedicated provision |
| Reconsidering final orders | Common law rule in Rice v Asplund | Codified in section 65DAAA |
How the Process Actually Works
For most separated parents, court is the last step, not the first. The Act and the Court’s pre-action procedures expect parents to attempt to resolve parenting issues outside court before filing.
The typical pathway looks like this:
- Family dispute resolution. Most parents must attend family dispute resolution (FDR) before filing a parenting application. A practitioner provides a section 60I certificate confirming the attempt was made. Limited exceptions apply — for instance, where there has been family violence or genuine urgency.
- Negotiated agreement. If agreement is reached, parents can record arrangements in a parenting plan (signed and dated, but not legally enforceable as orders) or apply for consent orders, which the Court can make without a hearing.
- Filing an application. If agreement cannot be reached, a parent files an Initiating Application supported by an affidavit addressing the section 60CC factors and a Notice of child abuse, family violence or risk.
- Family report or expert evidence. A Court Child Expert may interview the family and prepare a report on the child’s needs and the proposed arrangements.
- Final hearing. If the matter does not settle, the Court hears evidence and makes final orders applying the section 60CC framework.
Filing fees apply at most stages. As of 1 July 2025, an Initiating Application for final parenting orders (parenting only) is $435, with a further $150 for an interim order application. Fees are reviewed annually and current figures are published on the FCFCOA fees page. Concession card holders and applicants in financial hardship may be eligible for reduced or waived fees.
How the Courts Are Applying the New Law
The first published parenting decision under the amended Part VII was Shams & Alkaios (No 2) [2024] FedCFamC2F 620, decided on 20 May 2024. Judge Glass worked through each new section 60CC factor in turn in a relocation dispute between parents in Melbourne and Queensland. The case suggested that the substance of the analysis under the new section 60CC is closely related to the analysis under the old framework — what has changed is the structure and language, not the underlying questions a Court asks about a child’s welfare.
The new section 65DAAA, which codifies the long-standing rule in Rice v Asplund on when a final parenting order can be reopened, generated some early uncertainty. The Full Court resolved that uncertainty in Radecki & Radecki [2024] FedCFamC1A 246, confirming that the Court must still find a significant change in circumstances before reconsidering final orders made earlier.
The body of law is still building, and the Full Court will continue to refine how the simplified framework operates. For separating parents, the practical message is steady: the Court’s job is to identify the arrangements that best serve the particular child in front of it.
Practical First Steps for Separating Parents
If you are facing decisions about parenting arrangements, a few steps tend to make the path clearer:
- Focus on the children, not the relationship. The Court’s framework is child-centred. Submissions, affidavits, and negotiations that emphasise the child’s needs over grievances tend to land better.
- Document the existing care arrangements. Schools, medical appointments, daily routines — a clear factual picture of who has been doing what helps any decision-maker, whether a mediator or a judge.
- Keep safety paramount. If family violence or risk to the child is a concern, raise it early and clearly. Section 60CC now places safety first among the factors the Court must weigh.
- Try mediation before litigation. Family dispute resolution is required for most cases and often produces better-tailored outcomes than a contested hearing.
- Get tailored legal advice early. General information is a starting point; the right strategy depends on the specific circumstances of your family.
The Bottom Line
The law that governs parenting arrangements in Australia changed materially on 6 May 2024. The terminology of “custody” is gone. The presumption of equal shared parental responsibility is gone. In their place sits a streamlined, child-focused framework: six factors under section 60CC, careful attention to safety, and orders shaped to the child rather than to either parent’s preferred outcome.
For parents on the Central Coast and across NSW, the message is reassuring in one respect — the Court’s central question has not changed. It is, and remains, what is best for this child.
If you have questions about parenting arrangements, decision-making responsibility, or how the new framework applies to your situation, don’t hesitate to get in touch with one of our friendly Family Lawyers Central Coast. We can guide you through every stage — from negotiation and parenting plans, to consent orders or contested proceedings, including related matters such as property settlements where children are involved. Contact our team today.
