What You Need to Know About Child Custody Laws in NSW

An Overview of Child Custody Laws in NSW

Before we begin it is worth noting that the Family Law jurisdiction in Australia is a federal jurisdiction, which means that the Family Law Act 1975 (Cth) (“FLA”)  is applicable to all states except Western Australia. 

Part VII of the FLA is where all matters regarding children are regulated, including child custody. Section 60B of the FLA outlines the objects and principles which underpin all of the regulations relating to children. Specifically, these objects and principles aim to ensure that the best interests of the children are met and to give weight to the obligations under the United Nations Convention on the Rights of the Child.

Parenting Orders 

A parenting order is an order which deals with any aspect of parental responsibility for a child. A parenting order can address one or more aspects related to the child, as outlined in section 64B(2) of the Family Law Act (FLA), including the child’s living arrangements and the time the child is to spend with each parent or other significant person in the child’s life. These orders can deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child (64B(2)(i) of FLA). 

Section 60CA of the FLA states that when determining a parenting order in relation to a child the Court must regard the best interests of the child as a paramount consideration. Section 60CC gives a list of factors to consider when   determining what are the best interests of the child. Some of these factors include: 

• Child and Caregiver Safety: The court must consider arrangements that promote safety for the child and those caring for them, including protection from family violence, abuse, or harm.
• Child’s Views: The court must take into account any views expressed by the child.
• Child’s Needs: The developmental, psychological, emotional, and cultural needs of the child must be considered.
• Caregiver Capacity: The court assesses the ability of those with or proposed to have parental responsibility to meet the child’s needs.
• Relationship with Parents and Significant Others: The court considers the benefit to the child of maintaining relationships with parents and significant people, as long as it’s safe.
• Relevant Circumstances: Any other factors relevant to the child’s specific situation must be taken into account.
• History of Family Violence: The court must consider any history of family violence, abuse, or neglect and any related family violence orders.
• Cultural Rights of Aboriginal or Torres Strait Islander Children: The court must consider the child’s right to enjoy their cultural heritage, including maintaining connections to family, community, and language, and the impact of any orders on this right.

Parental Responsibility 

Parenting Orders are awarded on the basis of parental responsibility. Parental responsibility is defined by section 61B of the FLA as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. In Australia, parental rights are not legislatively defined, which deviates from the UN Convention on the Rights of the Child. However, this was a deliberate decision to move away from treating children as subjects of proprietary rights.

Section 61C of the FLA states that each parent has parental responsibility for the child , unless displaced by a parenting order. Since May 2024 there is no presumption of equal shared parental responsibility for each parent. Parental responsibility can be awarded solely to one parent, or to each parent either jointly or severally. 

Child Custody arrangements and Parenting Orders

The phrase “custody” refers to parenting orders which deal with where a child will live. The Federal Circuit and Family Court no longer uses the phrase “custody” when determining where the child lives and the basis on which they spend time with the other parent, instead the Court will make Orders which deal with where the child will live based upon the award of parental responsibility. The Court will then make Orders with how much time the child will spend with the other parent based on what is in the child’s best interest. 

How Family Law Courts Decide Child Custody in NSW

The Federal Circuit and Family Court will award parenting Orders about where a child will live based upon what is in the child’s best interest, this evaluation is closely aligned with the award of parental responsibility. Orders regarding where a child will live will be determined by evaluating the best interest factors outlined in section 60CC of the FLA against the current circumstances of the case. Every family is unique, and the specifics of the interpersonal relationships involved make it impossible to definitively outline a formula for determining the Orders regarding where a child will live. The Court will look at the situation at hand weighing up all the evidence and will determine what would be the best living situation for the child. 

The Role of Family Lawyers in NSW Child Custody Cases and When to Instruct a Family Lawyer

Family law practitioners have an obligation to ensure the best interests of the children are upheld during the course of proceedings. A good practitioner will alleviate the stresses involved in organising a parenting arrangement post-separation by providing a professional representation of your interests. Family law practitioners will assist you in all of the pre-trial procedures such as organising mediation and practitioners have an obligation to attempt to settle parenting disputes outside of Court where appropriate. 

A family law practitioner should be instructed where parties would like to formalise a post-separation parenting arrangement. A practitioner need not be instructed only in situations of high conflict, they can be instructed in situations where there is an amicable separation where the parties wish to formalise any parenting agreement that was reached post separation. Alternatively, in situations of a high conflict separation then instructing a family lawyer may be prudent to avoid further hostility or endangerment to yourself or the children in question. Your safety and the children’s safety will always be a priority to a family law practitioner. In situations where this safety is in jeopardy it is highly recommended that you instruct a family lawyer.  It is important that you find legal representation who has experience dealing with child custody cases and is sensitive to the unique circumstance of your separation. The family law team at Chamberlains embodies both experience in dealing with all kinds of child custody disputes whilst retaining a particular sensitivity to each individual case at hand. 

Final Thoughts on Child Custody and Family Law in NSW

Child custody in NSW is legislated by the FLA which allows for Parenting Orders to be made which deal with where the child will live. Parenting orders, which address various aspects of parental responsibility, are made with the child’s welfare in mind, considering factors such as safety, the child’s views, their developmental needs, and the history of family violence.The Court will make decisions based on the best interests of the child and determine where the child will live based upon what they deem to be in the child’s best interests. Family law practitioners play a crucial role in guiding families through pre-trial procedures, including mediation, and ensuring the child’s best interests are upheld. Whether handling amicable separations or high-conflict situations, family lawyers help formalise parenting arrangements and offer essential support in ensuring the safety and welfare of children. It is important that parents seek reliable and supportive legal advice to ensure that their child’s welfare and interests are maintained. 

*This article was prepared with the assistance of Zoe Hayes

 

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