Is Custody Still Used in Australian Family Law?
Not for parenting arrangements, although almost everyone still uses it, including many people who work in the area. The word itself is fine. The law simply no longer works the way it implies.
Custody suggested that one parent held the children and the other had visiting rights. Australian family law moved away from that framing because it did not reflect how most families actually work after separation, and because it turned parenting into something one parent won.
Instead, the law addresses two separate questions. The first is the practical one: where a child lives and how they spend time with each parent. The second is parental responsibility, meaning who makes the significant long-term decisions about things like schooling, major medical treatment and religious upbringing.
Those two things can sit differently. A child can live mainly with one parent while both continue to make the big decisions together. Understanding that distinction tends to take a good deal of heat out of the conversation, because parents often discover they are arguing about different things.
What Actually Decides Where Children Live?
The short answer is the child, rather than either parent.
There is no automatic formula for dividing parenting time, and arrangements are guided by each child’s best interests. The Family Law Act sets out what a court must consider. Safety comes first, including safety from family violence. Then any views the child has expressed. The child’s developmental, psychological, emotional and cultural needs. What each parent can provide. And the benefit to the child of a relationship with both parents, where that is safe. Beyond safety coming first, there is no ranking between them.
Since the May 2024 amendments, there is no presumption of equal shared parental responsibility. Courts no longer begin from the assumption that decision-making should be shared equally. It is worth saying clearly that Australia has never had a presumption of equal time. What changed in 2024 is that courts are no longer required to consider equal time as a step in the process. We have written separately about what the 2024 reforms changed and what they mean in practice.
For you, this means the question is not who deserves the children. It is what arrangement actually works for this child, at this age, with these two parents, and these school and work commitments.
What Do Parenting Arrangements Actually Look Like?
There is no standard arrangement, which surprises people who have heard that “week about” is how it is done. Parenting arrangements are built around the individual family rather than a template.
Some children live primarily with one parent and spend regular time with the other. Some split their time more evenly. Some arrangements change with the school term or the season, and many change as children get older and their own lives get busier. Arrangements for a four-year-old and a fourteen-year-old in the same family often look quite different, and that is not a failure of fairness.
What Happens in the First Few Weeks After Separation?
This is the part that causes the most immediate distress, and it is worth being clear about.
In the period straight after separation, there is often no formal arrangement at all. Parents work something out between themselves, sometimes week to week. That is normal, and it does not lock anything in permanently.
Two things are worth knowing. Informal arrangements that run for a long time can start to look like the status quo, which can carry some weight later. And a parent who moves out of the family home does not give up their position with the children by doing so. That fear keeps a lot of people living in a difficult situation longer than they need to, and it is not how the law works. Our guide to the first steps after separation in Victoria covers the practical side of that period in more detail.
If what is worrying you is safety rather than scheduling, that changes both the picture and the advice.
How Are Most Parenting Arrangements Actually Reached?
By agreement, in the great majority of cases.
Most families never have a court decide this. They reach an arrangement between themselves, often with the help of family dispute resolution or mediation, and then record it in a way that suits how much certainty they need. In Victoria, that support is available through Family Relationship Centres, Relationships Australia Victoria and accredited private practitioners. Our guide on how to prepare for family law mediation sets out what that preparation involves, and we have written separately about the difference between a parenting plan and consent orders.
Where children are involved, family dispute resolution is generally required before you can file a parenting application, although exceptions apply. That requirement exists for a reason. Arrangements parents build themselves tend to be more workable and more durable than those imposed on them. Village Family Lawyers supports 90% of matters through mediation, resolving them without court proceedings.
Court remains available when agreement is not possible or safe, and it is sometimes the right answer. It is simply not the first one.
