How “child custody” works in NSW (the plain-English version)
In Australian law we usually say “parenting arrangements” rather than “custody.” Parenting arrangements can be recorded as:
- Parenting plans (informal but useful)
- Consent orders (filed and enforceable)
- Parenting orders made by the Federal Circuit and Family Court of Australia (FCFCOA) if parents can’t agree
The legal test: “Best interests of the child”
Every parenting decision turns on what is in the child’s best interests. The 2024 amendments simplified the factors the Court considers and strengthened how safety information is shared with the Court. Key themes include:
- Protecting the child from harm (including family violence)
- Supporting meaningful relationships with parents and significant people where safe and appropriate
- Practicality and the child’s developmental, emotional and cultural needs (including specific stand-alone considerations for First Nations children) (fcfcoa.gov.au)
(Bottom line: there’s no automatic formula for “equal time.” Outcomes are tailored to the child and the family’s circumstances.) (abkj.com.au)
Typical pathways to agreement (without going to Court)
- Direct negotiation between parents (often with lawyer guidance)
- FDR/mediation with an accredited practitioner → issue of a 60I certificate if resolved/attempted
- Convert agreement to Consent Orders (recommended for enforceability) (fcfcoa.gov.au)
If FDR isn’t appropriate (e.g., urgency, high risk, family violence), you can seek an exemption and file directly. (fcfcoa.gov.au)
If Court is needed: the NSW process in brief
- File an Initiating Application with your 60I certificate (or exemption)
- Early case management in the FCFCOA with safety screening and information-sharing powers now strengthened by the 2023 reforms
- Interim orders may be made to stabilise arrangements
- Evidence phase (e.g., family reports)
- Final hearing if no agreement is reached beforehand (fcfcoa.gov.au)
What parenting arrangements can look like (common building blocks)
- Where the child lives (primary home or shared time)
- Time with the other parent (weekends, mid-week, holidays)
- Special occasions & travel (birthdays, school events, passports)
- Communication (phone/video)
- Decision-making responsibility (long-term issues like education/health)
- Safety measures (supervised time, safe changeovers, no-substance clauses)
Scenario planner (NSW examples)
These illustrative scenarios show how principles may apply. Every family is different; facts and safety risks matter.
1) Young child, high conflict, safety concerns alleged
- Likely features: Short, structured time with the non-primary parent; supervised visits initially; safe, public changeover locations; drug/alcohol testing if relevant; detailed communication protocols.
- Why: The Court prioritises safety and the child’s developmental needs while maintaining relationships where safe. ADVOs and any risk evidence will be weighed carefully. (Your Local Blue Mountains’ Solicitors)
2) School-aged child, both parents involved, logistics tight
- Likely features: School-week anchoring (e.g., 5-2 or 2-2-5-5 rotations), explicit homework and extracurricular responsibilities, flexible holiday blocks.
- Why: Focus on practicality, routine and minimising disruption while facilitating meaningful time with both parents (no automatic equal time).
3) Teenager with strong preferences
- Likely features: Greater weight to the young person’s views; hybrid schedule around school/exams; clear boundaries on devices, curfews and study.
- Why: Children’s views are considered in light of maturity and context under the best-interests framework.
4) Grandparents seeking time or primary care
- Likely features: Orders for the child to live with grandparents or spend time/communicate with them, depending on circumstances.
- Why: Grandparents and other significant carers can apply for parenting orders if they’re concerned with the child’s care, welfare and development. (Family Relationships Online)
Safety, ADVOs and parenting orders (NSW)
If there’s an ADVO (Apprehended Domestic Violence Order), the family court must still make parenting orders in the child’s best interests. Where there’s inconsistency, a family court order can specify the inconsistency so practical arrangements are clear (e.g., supervised contact, third-party changeovers). Breaching an ADVO is a criminal offence.
Evidence that helps (and what to avoid)
Helpful:
- School/medical records, communication logs, incident notes
- Practical proposals that show you’ve thought about logistics (school, travel, costs)
- Openness to FDR/mediation where safe and appropriate
Unhelpful:
- Vague allegations without corroboration
- Using the child to pass messages or monitor the other parent
- Breaching interim arrangements or an ADVO (this can seriously harm your case)
Working with a custody lawyer in NSW
A custody lawyer NSW (family lawyer) can:
- Reality-test your goals against the law and likely outcomes
- Help with safety planning, interim orders, subpoenas and evidence
- Draft Consent Orders that actually work in real life
- Navigate information-sharing and new reform settings post-May 2024 (fcfcoa.gov.au)
Frequently Asked Questions (NSW)
-
How does the Court decide custody in NSW?
By applying the best-interests framework under the Family Law Act (as amended in 2024). Expect a sharp focus on safety, meaningful relationships (where safe), and practical, child-centred arrangements. There’s no default rule for equal time. (fcfcoa.gov.au)
-
What are “parenting orders” in NSW?
They are court orders about children—who they live with, time/communication with the other parent or relatives, and how major decisions are made. Orders can be made by consent or by a judge if parents can’t agree. (fcfcoa.gov.au)
-
Can grandparents apply for custody?
Yes. Grandparents and other significant people concerned with a child’s care can apply for parenting orders (to live with, spend time with, or communicate). The Court still assesses best interests and safety. (Family Relationships Online)
-
What if parents can’t agree on custody in NSW?
You’ll usually attend FDR/mediation and obtain a 60I certificate before filing in the FCFCOA (unless an exemption applies for urgency or family violence). Interim orders can stabilise things while the case progresses. (fcfcoa.gov.au)
Quick reference: Your next steps
- Safety first. If there’s any risk, get advice urgently; understand how ADVOs interact with parenting.
- Try FDR (where appropriate) and aim for a workable parenting plan; record it as Consent Orders for certainty. (fcfcoa.gov.au)
- Prepare evidence (school/medical records, message logs, proposals).
- Get legal advice early—especially if relocation, risk, or complex logistics are involved.
Useful NSW/NSW resources
- Family law changes from 6 May 2024 (what’s different now). (fcfcoa.gov.au)
- Compulsory pre-filing FDR & 60I certificates (when you need them; exemptions). (fcfcoa.gov.au)
- Attorney-General’s guidance on 60I certificates (what they are/how they work). (Attorney-General’s Department)
- Grandparents & other carers (eligibility to apply). (Family Relationships Online)
If you’re weighing options for parenting arrangements in NSW, we can help you map a child-centred, safe, and practical plan—by agreement where possible, and decisively through the Court where needed. Reach out for a confidential chat with a custody lawyer NSW today.
