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Rachel Weatherly, March 4 2019

Child 'Custody' - Why is this term no longer used with respect to Family Law children's matters in Australia?

We have found that many of our family law clients use the word “custody” with respect to their child’s living arrangements. It seems that the word is familiar because of US television, International articles and discussions on social media and the like.

The term “custody” was in fact removed from the Family Law Act in 1996 in an attempt to change the view that children were to be “won” and to focus more on co-parenting and a focus on what is in the best interests of the child.

In lieu of the Court granting “custody” to a parent the Court will make “parenting orders”. The Court will order that children “live with” one parent and “spend time and communicate” with the other. There are even Orders where a child will “live with” each of the parents.

In Australia, under the Family Law Act, there is a presumption of “equal shared parental responsibility” of children.  Equal shared parental responsibility means that both parents will have a role in making decisions about major long-term issues such as where a child goes to school or major health issues and the like.

On occasion the Court may grant sole parental responsibility in particular circumstances where equal parental responsibility is not in the best interest of the child; for instance where there may be family violence.

Having shared parental responsibility is not the same as having equal time and we will discuss these issues further in a future blog.

Written by

Rachel Weatherly

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