Despite the use of the term ‘custody’ in television shows, movies and media all over the world, the Family Law Act 1975 does not use the term to describe the future care and needs of children. In Australia we use a combination of ‘primary care’ and ‘parental responsibility’.
The best interests of a child are the paramount considerations when determining care arrangements, along with ensuring that the child would benefit from having a meaningful relationship with both parents. Depending on your individual situation, Courts will take into account certain risks factors that will determine a parent’s capacity to care for their child.
The primary carer is the parent with whom the child will live with after separation. Parental responsibility, in comparison, is about the legal duty, power, responsibility and authority a parent has in relation to decision making for their child. There is a presumption of equal shared parental responsibility when starting these proceedings and this presumption will only be altered if there are mitigating or aggravating factors available.
Many child arrangements comprise of equal shared parental responsibility with one parent being a primary carer of the child, and the other parent still seeing their child on a regular basis and spending ‘substantial and significant’ time with them.
As these decisions are not straight forward, it is important to stay informed and seek independent legal advice. If you have any questions about this process, please do not hesitate to contact our office.
