Many parents search for child custody information when separating. Australian law no longer uses the word “custody”, but the issues people care about remain the same: where a child lives, how they spend time with each parent, how decisions are made, and how to resolve disagreement. Today, these questions are decided under parenting orders made pursuant to the Family Law Act 1975 (Cth).
The current legal framework (post-May 2024)
The court’s paramount consideration remains the best interests of the child. In 2024 the legislature simplified the best-interests inquiry in s 60CC, concentrating it on safety and child-centred factors. In deciding parenting orders, courts consider, among other things:
Safety of the child and carers (including any history of family violence, abuse or neglect, and any family-violence orders).
The child’s views (in light of age and maturity).
The child’s developmental, psychological, emotional and cultural needs.
Each proposed carer’s capacity to meet those needs.
The benefit of the child having relationships with parents and other significant people, where safe.
The stability and continuity of care.
For Aboriginal and Torres Strait Islander children, the Act also requires consideration of the child’s right to enjoy and connect with culture.
The 2024 amendments repealed the presumption of equal shared parental responsibility and the former statutory pathway that required courts to consider equal time or substantial and significant time in certain circumstances. The reforms were expressly aimed at removing misconceptions that the law defaults to 50/50 arrangements, and at reducing pressure on parties to agree to unsafe or impracticable patterns.
“Parental responsibility” after the reforms
A point of confusion since May 2024 is whether parental responsibility still exists. It does, but is now referred to as parental decision making. The concept remains defined in s 61B as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”, and each parent has parental decision making responsibility subject to court orders (s 61C). What changed is the presumption of equal shared parental responsibility (former s 61DA) and its linked time-consideration pathway; those provisions were removed and replaced with a more flexible decision-making scheme.
Under the new scheme:
A parenting order can allocate decision-making (for “major long-term issues”) jointly or solely (s 61D; see also s 64B(3) on what parenting orders may include).
If an order provides for joint decision-making, the Act now clarifies its effect (s 61DAA) and encourages parents—if safe and subject to orders—to consult about major long-term issues (s 61CA).
Day-to-day decisions while a child is spending time with a person do not require consultation unless the order says otherwise (s 61DAB).
Key takeaway: Australian family law still recognises parental responsibility, but there is no statutory presumption that it must be shared or that it requires equal time. The court tailors decision-making structures to the best interests of the particular child.
What orders can the court make?
A parenting order can address:
Who the child lives with and how time is divided with each parent (and significant others).
Communication arrangements (e.g., phone/video contact).
Decision-making for major long-term issues (education, health, name, religion/culture, major relocations).
Any other aspect of a child’s care, welfare and development.
Parents can reach arrangements through:
an informal agreement;
a written parenting plan (not enforceable but persuasive); or
consent orders filed with the court (binding and enforceable).
If there is no agreement, the court can make parenting orders after considering the s 60CC factors. Most applicants must first attempt Family Dispute Resolution unless an exemption applies (e.g., family violence, urgency). Practitioners are no longer required to advise parties to consider equal or substantial time as “reasonably practicable”—a direct consequence of the 2024 amendments.
Who “gets custody” in Australia?
There is no default that a child lives with one parent or that time is equal. The court assesses proposals against the child’s safety, needs and circumstances. In suitable cases, equal time can still be ordered; in others, children may have a primary home base and spend substantial time with the other parent (e.g., weekends, mid-week time, holidays). The legislation no longer hard-wires any mathematical formula into the analysis.
Search intent notes (for readers): People often ask “how often do fathers get 50/50 custody in Australia?”. The statute does not track outcomes by gender; the question is always what serves this child’s best interests having regard to safety, practicality and developmental needs.
“Full custody”: when will the court limit or supervise time?
Australian law avoids the phrase “full custody”. Practically, the court may order that a child live with one parent only, allocate sole decision-making on major issues, and limit or supervise the other parent’s time if necessary for safety. The modern framework puts risk screening and safety at the forefront, including through strengthened inter-agency information sharing between state/territory police, child protection and the courts in child-related proceedings.
The Family Law Amendment (Information Sharing) Act 2023 repealed former s 69ZW and introduced a new Subdivision DA for information sharing (e.g., orders for particulars, protected information categories, safeguards, and a permission requirement before subpoenaing agencies already ordered to produce). These changes are designed to surface relevant risk information earlier and more safely.
Children’s voices and Independent Children’s Lawyers (ICLs)
The court may appoint an Independent Children’s Lawyer to represent the child’s best interests. Since May 2024, ICLs are generally required to meet the child and give them an opportunity to express views (with limited exceptions), reflecting a stronger commitment to participation consistent with Article 12 of the CRC.
Varying old parenting orders: the Rice & Asplund rule is now in the Act
Applications to re-open final parenting orders remain challenging at times. The amendments introduced s 65DAAA, which codifies when a court may reconsider final parenting orders (building on the long-standing Rice & Asplund principle). The party seeking reconsideration must generally show a significant change of circumstances or that reconsideration is otherwise in the child’s best interests.
FAQs (in plain English)
What are “child custody laws in Australia” now called?
They are parenting laws. Courts make parenting orders about living, time, communication, and decision-making for the child.
Is “parental responsibility” still a thing?
Yes. The term remains in the Act (s 61B/61C). What changed is the removal of the presumption that parental decision making should be equal and the linked requirements to consider equal or substantial time.
Who gets custody of a child in divorce in Australia?
There is no automatic rule. The court applies the best-interests framework with a strong emphasis on safety and practicality.
How often do fathers get 50/50?
There is no gender-based benchmark. Equal time is ordered only where it is in the child’s best interests and workable; the statute no longer sets a prescriptive “equal-time consideration” pathway.
Can I get “full custody”?
If warranted for safety or welfare, the court can order that a child live with one parent, allocate sole decision-making, and limit/supervise the other parent’s time. Evidence about risk (including through information-sharing mechanisms) is critical.
Final word
The 2024/25 reforms did not replace one rigid rule with another. They refocused Australian family law on safety and child-specific tailoring, removed misleading presumptions, clarified decision-making orders, strengthened children’s participation, and improved risk information-sharing with state agencies. For parents, the practical question is no longer “What does the law presume?”, but “What arrangement best meets this child’s needs and keeps them safe?”
At Thornton + King our award winning team have decades of experience dealing with family law parenting disputes. To speak to a Law Society Accredited Specialist Family Lawyer, give us a call or submit an enquiry now.
