Updated 28 October 2026
CM Law's Ultimate 50 List - Separated Couples FAQ #4: How can custody of children be determined?
How is child custody determined in NSW?
Parenting arrangements in NSW are determined by agreement or, if necessary, court orders based on the child’s best interests. Australian family law uses terms such as living arrangements, time with parents and decision-making responsibility. There is no automatic entitlement to equal time, and safety must be considered when deciding appropriate arrangements.
What parents commonly call “custody” can involve several separate questions: where a child lives, when they see each parent, how they communicate and who makes important decisions. Parents do not need to divorce before resolving these issues.
Ordinary parenting disputes are governed by the Family Law Act 1975 and generally heard in the Federal Circuit and Family Court of Australia. NSW child protection proceedings operate under a separate legal framework.
What does the child’s best interests test involve?
The court considers the child’s safety, views, developmental and other needs, and the ability of responsible adults to meet those needs. It also considers beneficial relationships where safe and any other relevant circumstances. Additional considerations protect Aboriginal and Torres Strait Islander children’s cultural rights. The assessment depends on the individual child.
The current parenting framework requires attention to practical details, including:
- Protection from violence, abuse, neglect and other harm, including risks to people caring for the child.
- The child’s emotional and psychological wellbeing, stage of development and cultural connections.
- Each proposed carer’s capacity to provide appropriate care and meet the child’s needs.
- Relationships with parents, siblings, grandparents and other significant people, where safe.
School travel, routines, accommodation and work commitments can affect whether a proposal will work. A schedule should address the child’s circumstances rather than simply divide the calendar between adults.
Does shared parental responsibility mean equal time?
Decision-making responsibility and the time a child spends with each parent are different issues. The presumption of equal shared parental responsibility was removed from 6 May 2024. Equal time has never been an automatic entitlement. Courts can allocate joint or sole decision-making for all or particular major long-term issues.
Those issues can include schooling, significant health decisions and religious or cultural upbringing. Subject to orders, each parent ordinarily has parental responsibility; separation alone does not remove it. The May 2024 reforms did not automatically cancel existing parenting orders. Obtain advice about their continuing effect before changing established arrangements.
Where an order requires joint decision-making, parents must consult and genuinely attempt to reach a joint decision. An order giving one parent responsibility for particular decisions does not itself determine the child’s time with the other parent. Check the wording of the actual orders.
Can children choose which parent they live with?
A child’s views must be considered when expressed, but they do not automatically determine the outcome. There is no fixed age at which a child’s preference becomes decisive. The court considers the child’s maturity, understanding and circumstances, alongside the other best-interests considerations, including safety and their developmental needs.
Views may be conveyed through a child impact report, family report or an Independent Children’s Lawyer appointed to represent the child’s best interests. Children should not be pressured to choose a parent, rehearse answers or act as messengers.
Legal Aid NSW explains that the weight given to a child’s views depends on the individual circumstances, including whether someone has tried to influence them.
What is the difference between a parenting plan and consent orders?
A parenting plan is a voluntary written agreement, signed and dated by the parents, that records their arrangements but is not legally enforceable. Consent orders are binding orders approved by the court. Both can address practical parenting issues, but their legal effect and the process for changing them differ.
An agreement should cover ordinary weeks, school holidays, special occasions, communication, major decisions and changeovers. Specify who collects the child, the location and time, and how unavoidable delays will be communicated.
Parents can apply for consent orders without a contested hearing. The court must still consider the child’s best interests; agreement alone does not guarantee approval. Have a lawyer check the proposed terms and explain whether a parenting plan or consent orders suit the circumstances.
Parents generally need to attempt Family Dispute Resolution before starting parenting proceedings and provide a section 60I certificate, unless an exemption applies. Exemptions include qualifying circumstances involving urgency, family violence, child abuse or inability to participate effectively. Applications for consent orders do not require this certificate.
A registered practitioner assesses whether FDR is appropriate and helps the parties explore agreement. A certificate can also be issued where a party refuses to attend or the process is unsuitable; it does not decide who is right.
Discuss safety concerns before any joint session. Your lawyer can explain the FDR requirements and exemptions, supporting evidence and other pre-action obligations. Do not delay urgent advice because you assume mediation must always happen first.
What happens if parents cannot agree or safety is at risk?
If agreement cannot be reached, a parent can apply for parenting orders after meeting applicable filing requirements or obtaining an exemption. The court may make interim arrangements while evidence is gathered and later determine final orders. Family violence, child abuse and other safety concerns should be identified promptly and supported with relevant information.
The Court’s application guide explains the required documents, including the proposed orders and Notice of child abuse, family violence or risk. Provide existing parenting orders and relevant protection orders, and explain specific incidents and concerns accurately.
Evidence may include school or medical records, affidavits and a family report. Depending on the evidence, protective arrangements might include supervised time or safer changeovers. The court determines what is appropriate; allegations do not produce an automatic outcome.
Seek urgent legal advice if a child may be unsafe or an existing order creates an immediate concern. Call 000 in an emergency.
What does a recent parenting decision illustrate?
In Jack & Llewellyn [2025] FedCFamC2F 320, the Court made tailored arrangements for a child with anxiety. The child would live with the mother, who received major long-term decision-making responsibility subject to seeking the father’s input, while the child’s time with the father increased gradually under a staged schedule.
Both parents supported increasing the father’s time but disagreed about the pace and extent. The judge considered the child’s psychological needs, conflict between the adults and difficulties communicating.
The Court did not adopt the proposed progression to equal care during school terms. Its orders addressed communication, holidays and changeovers, as well as how the mother would consult the father before making major decisions.
This illustrates the separate assessment of decision-making and time arrangements. It does not establish a preference for mothers, a standard schedule or a rule that every child needs gradual increases in time.
How should parents follow orders and record changes?
Parents must understand and follow parenting orders, including collection, return and communication requirements. Record any agreed variation clearly in writing, identifying the dates, times and responsibilities involved. Do not assume that an email or text automatically changes an order’s legal effect; obtain advice about the appropriate way to formalise changes.
Where orders expressly allow different arrangements by written agreement, follow that process. Confirm whether a change is temporary or ongoing, retain both parties’ agreement and avoid relying on a child to pass on instructions.
A later parenting plan can affect existing orders in some circumstances. Changing final orders without agreement involves additional legal requirements, including consideration of changed circumstances and the child’s best interests. Seek advice before departing from an order, particularly where safety is involved.
CM Lawyers’ parenting services can help you assess options and prepare clear arrangements. Contact the team with your existing orders, relevant documents and a practical proposal focused on your child.
General information for families in NSW. Always have a lawyer check your circumstances, existing orders and proposed parenting arrangements before relying on this guide.
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