In Australia, child custody (now referred to as parenting arrangements) is determined under the Family Law Act 1975 (Cth). The court’s primary focus is on the best interests of the child, ensuring their safety, welfare, and a meaningful relationship with both parents. Parenting arrangements can be mutually agreed upon by the parents or, if disputed, decided by the Federal Circuit and Family Court of Australia (FCFCOA).

1. The Best Interests of the Child – The Primary Consideration

Under Section 60CC of the Family Law Act, the court assesses two primary factors when determining custody:

✅ The benefit of the child having a meaningful relationship with both parents.
✅ The need to protect the child from harm, abuse, neglect, or family violence (this factor has greater weight).

If there is evidence of harm, the court may restrict or deny time with one parent, such as ordering supervised visits or no contact.

2. Additional Factors the Court Considers

In addition to the primary considerations, the court also looks at:

👶 The child’s views – If the child is mature enough to express a preference, the court may consider their wishes.
🏡 Parental involvement – Who has been the primary caregiver?
💰 Capacity to provide for the child – Financial stability, work commitments, and ability to care for the child.
👩‍👦 Sibling and family relationships – The importance of maintaining bonds with siblings and extended family.
📍 Stability and routine – The impact of changes to the child’s home, school, and social environment.
⚖️ Parental cooperation – Whether each parent encourages a relationship between the child and the other parent.

3. Parental Responsibility vs. Custody (Parenting Orders)

• Parental Responsibility: The legal duty to make major decisions about the child’s upbringing (education, health, religion). By default, both parents have equal shared parental responsibility, unless the court finds it is not in the child’s best interests.
• Living Arrangements (Custody): Determines who the child lives with and how much time they spend with the other parent.

Equal shared parental responsibility does NOT mean equal time. The court orders equal time only if it is in the child’s best interests and practical.

4. Relocation – Moving with a Child After Separation

A parent cannot relocate with the child without the other parent’s consent or a court order, especially if the move would significantly impact the child's relationship with the other parent.

Key Factors Considered by the Court in Relocation Cases:

✅ The child’s best interests – How the move will affect their emotional and psychological well-being.
✅ Reason for relocation – Whether it is for work, family support, or a fresh start.
✅ Impact on the non-relocating parent – Will it hinder their ability to maintain a relationship with the child?
✅ Practicality of maintaining contact – Can the non-relocating parent visit frequently, or will digital communication be relied upon?
✅ Educational and social stability – Will the child’s schooling and friendships be affected?

💡 If a parent relocates without consent or a court order, the other parent can apply to the court for a recovery order, requiring the child to be returned.

5. Supervised Visits – When Are They Ordered?

The court may order supervised visits if there is a concern about the child’s safety. Supervision ensures that the child maintains a relationship with a parent while reducing risks.

When Are Supervised Visits Required?

🚨 Family violence or abuse – If there is a history of domestic violence.
🚨 Neglect or substance abuse – If a parent has a history of alcohol or drug abuse.
🚨 Mental health concerns – If a parent has an untreated mental illness affecting their ability to care for the child.
🚨 Reintroduction after long absence – If a parent has been absent for a long time and needs to rebuild trust with the child.

Supervised visits typically occur at a Children’s Contact Centre or under the supervision of an agreed third party (e.g., a grandparent).

6. Parenting Orders and Agreements

Parents can resolve custody matters through:

✔️ Parenting Plans – A voluntary, written agreement (not legally binding but can be used in court).
✔️ Consent Orders – A legally binding agreement approved by the court.
✔️ Parenting Orders – If no agreement is reached, the court issues a legally enforceable order based on the child’s best interests.

🚨 If a parent breaches a parenting order, they may face fines, community service, or changes to custody arrangements.
 

7. Family Dispute Resolution (Mediation)

Before applying to court, parents must attempt Family Dispute Resolution (FDR) (mediation), unless there is family violence, abuse, or urgency. A Section 60I Certificate is required to proceed to court if mediation fails.

8. Conclusion

Under the Family Law Act 1975, child custody (parenting arrangements) is determined based on the best interests of the child, balancing their safety, relationships, and stability. Courts encourage parents to agree on arrangements but will intervene if necessary.

• Relocation requires consent or a court order, considering the impact on the child’s relationship with the non-relocating parent.
• Supervised visits are ordered when there are safety concerns but a continued relationship with the parent is encouraged.