Key takeaway: Australian family law no longer uses 'custody' — it focuses on parental responsibility and what's in the child's best interests. There's no automatic 50/50 and no preference for mothers or fathers. Mediation (family dispute resolution) is generally a required first step and helps parents agree on arrangements, with a Section 60I certificate needed before going to court.
'Custody' isn't the legal term
Many parents still search for "custody", but Australian law moved away from that language years ago. Under the Family Law Act 1975, the focus is on parental responsibility (decision-making about major issues) and the arrangements for who a child lives with and spends time with. The shift is deliberate: children aren't possessions to be "won".
Working out arrangements for your children? A child-focused mediator can help you agree. Book a consultation.
Book a free consultation →The best-interests test
Every parenting decision is governed by one principle: the best interests of the child. The Family Law Act 1975 sets out the factors a court (and therefore a mediator) considers — above all, the benefit of a meaningful relationship with both parents, balanced against the need to protect the child from harm. Where those two collide, safety always wins. Reforms that took effect in 2024 streamlined these factors and placed the child's safety and needs at the centre.
| Factor | What it looks at |
|---|---|
| Safety | Protecting the child from family violence, abuse or neglect — the overriding consideration |
| The child's views | What the child wants, weighed for their age and maturity |
| Developmental needs | The child's emotional, psychological and developmental needs |
| Capacity to provide | Each parent's ability to meet those needs |
| Benefit of both parents | The value of a meaningful relationship with each parent, where safe |
How custody mediation works
Child custody mediation is a form of family dispute resolution. A neutral mediator helps both parents work through living arrangements, time-sharing, holidays, schooling and communication, keeping the focus on the children. If agreement is reached, it's recorded in a parenting plan and can be formalised as consent orders. For most parenting disputes, this FCFCOA family dispute resolution step is required before you can apply to court. You'll need a Section 60I certificate →
Is care always 50/50?
No. There is no automatic right to equal (50/50) time. While the law supports children maintaining meaningful relationships with both parents where safe, the actual arrangement depends entirely on the child's best interests and what's practical — distance, work, the child's age and routine all matter. Mediation lets you design an arrangement that genuinely fits your family rather than a one-size-fits-all formula.
| Pattern | How it works | Often suits |
|---|---|---|
| Week-about | Alternating full weeks with each parent | School-age children, parents living nearby |
| 5-2-2-5 | Fixed weekdays with each parent, alternating weekends | Younger children needing frequent contact |
| Alternate weekends | One parent primary, the other every second weekend plus some weeknights | Where distance or work limits midweek changeovers |
| Tailored | Any pattern that fits the child's routine and the family's logistics | Most families — the point of mediation |
Do mothers or fathers get preference?
The law gives no preference based on gender. Both parents start on equal footing, and outcomes turn on the children's best interests and each parent's circumstances — not on whether they're mum or dad. See fathers' rights after separation →
Worried the system is stacked against you? It isn't — and mediation keeps the focus where it belongs.
Book a free consultation →Does the child get a say?
Children's views can be taken into account in a way that's appropriate to their age and maturity — they're never asked to "choose". Child-inclusive mediation, where a specialist consults the child and feeds their perspective back into the process, is one way to ensure children are heard without being burdened with the decision.
When court may be needed
If mediation can't resolve matters — or where there's family violence, abuse or a serious safety concern — court may be necessary, and exemptions from the mediation requirement apply. Even then, mediation often narrows the issues first, which reduces the time and cost even if a judge ultimately decides. If safety is a concern, tell us, and we'll advise the safest path. See domestic violence and family law →
2024 Family Law Act reforms and parenting arrangements
In May 2024, significant changes to the Family Law Act 1975 took effect — the most substantial parenting law reforms in nearly two decades. The key changes:
- The presumption of equal shared parental responsibility was removed. The court no longer starts from an assumption of equal time; it goes straight to what arrangements serve the child's best interests.
- The list of best-interests factors was simplified and refocused, with greater weight given to safety from family violence and abuse.
- The court is no longer required to consider equal time or substantial and significant time as options in every case.
For mediation, these reforms reinforce what good mediators have always focused on: the specific child's needs, not a formula. Parents who reach their own agreement through mediation were never constrained by the presumption — they set arrangements that fit their family. The 2024 reforms align the court's approach more closely with what mediation has always done. See the full 2024–2025 family law changes →