Family Law Act 1975 Parenting: How Part VII Governs Custody in Australia

The Act That Replaced Custody With Parenting

The Family Law Act 1975 (Cth) is the federal legislation that governs all family law matters in Australia, including every parenting dispute in every state and territory. South Australia referred its family law powers to the Commonwealth in 1986, so there is no separate state-level family court or custody legislation — the Act is the single source of law for parenting arrangements.

Part VII of the Act deals specifically with children. It's been significantly amended multiple times since 1975, most recently by the Family Law Amendment Act 2023 (commenced May 2024), which reshaped how courts assess parenting arrangements.

Parental Responsibility Under the Act

The Act defines parental responsibility as "all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children." In practical terms, this covers major long-term decisions about:

• Education — which school, what type of schooling, extracurricular commitments
• Health — medical treatment, mental health care, significant dental or surgical decisions
• Religious and cultural upbringing — religious education, cultural practices, community involvement
• Name changes — changes to the child's registered name
• Living arrangements — significant changes to where the child lives

Both parents share parental responsibility automatically from the child's birth. This remains the case after separation unless a court makes an order to the contrary.

Shared vs Sole Parental Responsibility

Shared parental responsibility means both parents must consult and genuinely try to reach agreement on major long-term decisions before either parent acts. Day-to-day decisions (what the child eats, what they wear, routine medical care) are made by whichever parent the child is with at the time — shared responsibility doesn't extend to the mundane.

Sole parental responsibility means one parent makes major long-term decisions without needing to consult the other. Courts order sole responsibility when shared decision-making isn't workable — typically because of family violence, high conflict that makes consultation impossible, or one parent's inability to participate in decision-making.

Before May 2024, there was a legislative presumption that equal shared parental responsibility was in the child's best interests. That presumption has been abolished. Courts now assess parental responsibility on a case-by-case basis without any default starting point.

Importantly, sole parental responsibility does not mean the other parent loses contact with the child. A parent can have sole responsibility for decisions while the child still spends regular time with the other parent. Decision-making authority and time-sharing are separate concepts under the Act.

The Best Interests Framework (Section 60CC)

Section 60CC sets out the factors a court must consider when making any parenting order. The May 2024 reforms replaced the previous two-tier system of "primary" and "additional" considerations with a streamlined list of six factors:

1. Safety — protecting the child and caregivers from harm, family violence, abuse, neglect, and coercive control
2. Child's views — weighted by age, maturity, and developmental understanding
3. Developmental and cultural needs — the child's emotional, psychological, and identity needs
4. Parental capacity — each parent's ability to meet the child's needs
5. Relationship value — the benefit of maintaining meaningful relationships with both parents and significant others, where safe
6. Other relevant matters — a catch-all for circumstances specific to the family

The most significant structural change is that safety is now given priority. Under the old framework, the child's relationship with both parents and protection from harm sat as co-equal "primary" considerations, which sometimes forced courts into an uncomfortable balancing act. The reformed Act addresses that tension by placing safety first in the assessment.

How the Act Applies in Practice

For separating parents, the Act creates three pathways to formalise parenting arrangements:

Parenting plans — written, signed and dated agreements between parents. Recognised by the Act but not enforceable. Can override previous court orders if the order permits variation by parenting plan.

Consent orders — agreements filed with and approved by the Federal Circuit and Family Court of Australia (FCFCOA). Once made, they carry the same force as a court judgment.

Court orders — orders made by a judge after a contested hearing, based on the court's assessment of the best interests factors.

The Act also establishes the pre-action requirements that apply before any parenting application can be filed — including mandatory Family Dispute Resolution and the Section 60I certificate process, subject to statutory exemptions.

The Rice and Asplund Test

One of the most consequential aspects of the Act for parents is the threshold for changing existing orders. The Rice and Asplund rule (now codified in the legislation) requires a parent seeking to vary final parenting orders to demonstrate a "significant change of circumstances" since the orders were made.

This means your initial arrangement — whether by consent orders or court judgment — carries substantial long-term weight. Changing it later isn't as simple as going back to court because you've changed your mind. You need to show that something material has shifted: a change in the child's needs, a relocation, a significant change in one parent's circumstances, or new safety concerns.

This is why getting the initial arrangement right matters so much. The South Australia Child Custody & Parenting Plan Guide is designed to help you draft a comprehensive initial arrangement — one that accounts for future changes (like the child starting school or entering adolescence) rather than one you'll need to litigate to modify later.

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