There is no legal concept of "custody" in Australian family law. Historically and in foreign countries custody has been one legal concept relating to two practical aspects of caring for a child. The first practical concept is the ability of a parent to make decisions for a child (such as what school they attend or what religion they practise). The second practical concept is how the child's time is divided between both parents.

In Australia the legal ability or power of a parent to make important decisions for a child is referred to as "parental responsibility" which is, practically speaking, separate from how a child's time is divided between his or her parents.

Parental responsibility is the legal duties, powers, responsibilities and/or authority to make decisions in relation to a child. Both parents are presumed to have parental responsibility for a child. Parental responsibility comes with an obligation to consult the other parent about important issues (being "major long term issues") such as the child’s education, religion, culture, health, name or moving a significant distance away from the other parent.

Unless there have been incidents of child abuse or family violence, the court must proceed on the basis of a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child.

Where the presumption of equal shared parental responsibility applies, the court must then consider whether or not it is in the child’s best interests and reasonably practical for the children to spend: "equal time" or "substantial and significant" amounts of time with each of their parents. Equal time does not necessarily mean the child lives with one parent for a week and then the other parent for the next week. Each situation is different. Substantial and significant time requires the child to be with one parent on days that include weekdays, weekends, holidays and special occasions (such as Christmas).

Decisions about the care of a child fall to be determined under the principal of what is in their best interests. In determining the best interests the court looks at one “checklist” in two categories (being the primary considerations and the additional considerations) to work out what is best for a child. The considerations are summarised below.

Primary considerations

• The benefit to the child of having a “meaningful relationship” with both parents.
• The need to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence.

Additional considerations

• Views expressed by the child and any factors, such as the child's maturity or level of understanding that may be relevant to any weight that should be given to the child’s views.
• The nature of the relationship of the child with each of his/her parents and any other significant persons.
• The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
• The likely effect of any changes in the child’s circumstances, including the likely effect of the child of any separation from either parent or any other child or significant person with whom the child has been living.
• The practical difficulty and expense in a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain a personal relationship and contract with both parents on a regular basis.
• The capacity of each of the child's parents and any other significant person to provide for the needs of the child.
• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the parents and any other characteristic of the child the Court considers relevant.
• If the child is Aboriginal or Torres Strait Islander the child’s right to enjoy that heritage and the likely impact any proposed Parenting Order would have on that right.
• The attitude to the child and the responsibility for parenthood demonstrated by the parents.
• Any family violence involving the child or a member of the family.
• Any Family Violence Order that may apply to the child or a member of the child’s family and the circumstances of the Order.
• Whether it would be preferable to make the Order that would least likely lead to the institution of further proceedings.
• Any other relevant factor.

The primary and additional considerations are guided by the objects and principals of the Family Law Act. The objects and principals are summarised below.

Objects

• ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
• protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
• ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
• ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Principals

• children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
• children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
• parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
• parents should agree about the future parenting of their children; and
• children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

After considering all of the above matters a court will decide: who the child lives with (and a child can live with both of his or her two parents); and/ or what time the child spends with one of its parents. A court can also consider how a child communicates with his or her two parents.

To determine what is "reasonably practical" a court must consider:

• how far apart the parents live from each other;
• the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
• the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
• the impact that an arrangement of that kind would have on the child; and
• such other matters as the court considers relevant.

The Family Court or Federal Circuit Court can make any of the following types of Orders about a child:

• an order which deals with the person or persons with whom a child is to live;
• an order which deals with person or other persons with whom a child is to spend time;
• an order which deals with the allocation of parental responsibility and the form of communications between persons who share that responsibility:
• an order which deals with the manner in which a child is to communicate with another person or persons:
• a child maintenance order (these are rare and only usually apply to children not covered by the law concerning Child Support);
• an order which deals with the steps which must be taken before an application to change or vary an order is made:
• an order which deals with the process to be used for resolving disputes about the terms or operation of the order: and
• an order which deals with any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child:

Parents are encouraged by the Family Law Act to reach an informal agreement between themselves about arrangements concerning their children by entering into a parenting plan. A parenting plan is a written document signed and dated by the parents of children that is made free from duress or coercion and which deals with matters including the living, arrangements for a child and how the parents deal with their parental responsibilities. It is desirable to include in a parenting plan provisions as to the way future conflicts or misunderstandings or the changing needs of the children or parents will be addressed.

A parenting plan is not enforceable as an Order of a court, although a court will consider the terms of such plan in the event of a later dispute in the court.

Your family lawyer should address you to non litigious approaches and advise you of their obligation to make a genuine effort to settle a dispute regarding a child by enter into a parenting plan.

If you already have an Order in place regarding arrangements for your children then you should obtain legal advice before entering into a parenting plan. Why? Many Orders can be automatically varied with the agreement of both parents by making a subsequent (later) parenting plan, unless the Orders state that they cannot be altered by a parenting plan. The Orders will only be varied to the extent of any inconsistency with the parenting plan but this may lead to important legal changes which should be properly considered and understood.

A “parenting order” may be applied for by:

• either or both of the child's parents;
• the child;
• a grandparent of the child; or
• any other person concerned with the care, welfare or development of the child.

As part of landmark changes to the Family Law Act in 2006 the Australian Government established the Family Relationships Centre whose brief explicitly included a mandate to focus on a greater recognition of the rights of grandparents and to assist grandparents in arrangements for grandchildren. It is among the objects of the Family Law Act that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other significant persons in their lives.

Grandparents may apply to a court for a parenting order including that a child live with, spend time with or communicate with the grandparent. In determining such applications a court looks at whether the grandparent’s proposal is in the best interests of the child.

Australia is a party to the Convention on the Civil Aspects of International Child Abduction that was signed at The Hague on 25 October 1980. This is commonly known as the "Hague Child Abduction Convention".

The Family Law (Child Abduction Convention) Regulations 1986 give legislative force in Australia law to the Hague Child Abduction Convention.

There are four primary conditions to the return of a child under the Hague Child Abduction Convention:

• the child must have been “habitually resident” in one of the countries that is also a party to the Hague Child Abduction Convention (for the purpose of the Child Abduction Regulations, a child can have only one place of habitual residence at any given time and it may surprise some Australian citizens that have lived abroad for a work assignment that their child may be habitually resident in a foreign country);
• there must be an eligible applicant (usually the legal department of DOCS acting on instructions from the Commonwealth Attorney General’s Department who receives the request from the foreign country but a parent can apply if they wish);
• there must be a relevant child (under the age of 16 years); and
• the child must have been either: wrongfully removed to or from Australia (removal/retention of a child is wrongful if it is made in breach of rights of custody which were actually being exercised at the time or removal or would have been exercised but for the removal).

The Family court is not required to consider the best interests of the child in deciding whether to return the child to the home country. The point of the Hague Child Abduction Convention is to secure the prompt return of an abducted child to his or her home country (rather than to return the child to the person from whom they have been taken, though this may be the initial practical result) so that the court of the home country can determine any parenting issues between the parents.

The speed with which proceedings under the Hague Child Abduction Convention can be a surprise to many parents and lawyers that are not experienced in the application of the Hague Child Abduction Convention.

Protecting children from physical or psychological harm, abuse, neglect or family violence is an object of the Family Law Act.

“Family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Where a court finds that there has been family violence then this can displace the presumption of equal shared parental responsibility which has consequent implications for whether a child spends equal time or substantial and significant time with a parent.

In determining the best interests of a child it is a “primary” consideration under the Family Law Act to protect the child from harm by exposure/subjected to family violence. It is an “additional” consideration under the Family Law Act to consider violence to the child or among the family group.

Parents that have been exposed to family violence are not required to participate in the compulsory mediation prior to filing parenting proceedings at a court.

Family violence can also have an impact on the calculation of your entitlement to property settlement. Conduct is rarely considered in determining a just and equitable property settlement but if you can show that your contributions to the relationship were made more arduous as a result of the violent conduct of your spouse or partner then an additional adjustment of money can be awarded in your favour.