Parenting arrangements and custody

What actually changed on 6 May 2024

Between 2006 and 2024 the Act contained a presumption of equal shared parental responsibility, and if that presumption applied the court had to consider whether the child spending equal time, or substantial and significant time, with each parent was reasonably practicable. In practice that structure was widely misread as a right to half the time.

The Family Law Amendment Act 2023 removed the presumption and removed the time-consideration pathway that followed from it. Nothing replaced them. There is no new presumption, in either direction.

What remains is a single decision, made on the evidence about this child. Section 60CC sets out what the court must consider:

• What arrangements promote the safety of the child and each person who cares for them, including safety from family violence, abuse, neglect and other harm.
• Any views expressed by the child.
• The child's developmental, psychological, emotional and cultural needs.
• The capacity of each proposed carer to meet those needs.
• The benefit to the child of a relationship with their parents, and other people who are significant to them, where it is safe.
• Anything else relevant to the child's particular circumstances.

Under section 60CC(2A), when assessing safety the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for them, and any family violence order. For an Aboriginal or Torres Strait Islander child, section 60CC(3) requires consideration of the child's right to enjoy their culture and the effect of the proposed order on that right.

Parental responsibility and decision making

Parental responsibility is the authority to make decisions about a child, and each parent has it unless a court order says otherwise. Separation does not change that. Section 61CA encourages parents to consult each other about major long-term issues and to try to reach a joint decision, but that is an encouragement, not an enforceable order.

A court can order joint decision making or sole decision making about major long-term issues under section 61D. Where joint decision making is ordered, section 61DAA requires the parties to consult and make a genuine effort to reach a joint decision.

What counts as a major long-term issue

• Education, including which school.
• Religious and cultural upbringing.
• Health, including significant medical treatment.
• The child's name.
• Changes to living arrangements that make it significantly harder for the child to spend time with a parent, which is where relocation comes in.

Day to day decisions are made by the parent the child is with at the time. You do not need to consult about bedtime, haircuts or a weekend trip to the coast.

How arrangements get decided in practice

Most parenting arrangements are agreed. The path usually runs like this.

1. Family dispute resolution. Except in cases of family violence, child abuse or urgency, you must make a genuine effort at family dispute resolution and obtain a section 60I certificate before filing a parenting application.
2. A parenting plan. A written, signed, dated agreement between the parents. It is not enforceable, but a later court must consider the most recent parenting plan when deciding what is in the child's best interests.
3. Consent orders. The same agreement filed with the court and made into orders. Enforceable, and the usual endpoint for parents who can agree.
4. An application to the court. Where agreement is not possible, or safety requires it. The court may appoint an Independent Children's Lawyer, who must now meet with the child and give them an opportunity to express their views, with narrow exceptions.

Final parenting orders are meant to be final. Section 65DAAA now codifies the rule from Rice v Asplund: a court must not reconsider final parenting orders unless it is satisfied there has been a significant change of circumstances and reconsideration is in the child's best interests.

Family violence and safety

Safety is the first consideration in section 60CC and it is not treated as a competing interest to be balanced away against contact. Where there is family violence, the pre-action family dispute resolution requirement does not apply and an urgent application can be made without a certificate.

Protection order proceedings in the Queensland Magistrates Court and parenting proceedings in the Federal Circuit and Family Court run in parallel and affect each other. A protection order can be inconsistent with a parenting order, and section 68R allows a state court to revive, vary, discharge or suspend a parenting order when making a protection order. Getting the two documents to work together is a large part of the job.

If you are worried about a child's immediate safety, contact the Queensland Police Service. For advice on protection orders, see domestic violence and protection orders.