Child Custody Laws in NSW

Child Custody Laws in NSW

Child Custody Laws in NSW

  • What Is Custody?
  • What Are Sole Custody Rights In NSW?
  • How To Make Parenting Arrangements In Cases Of Equal Custody?
  • Parenting Orders
  • Can the Child be Relocated to Another State or Country?
  • What about Child Support?
  • Conclusion


Child Custody Laws in NSW

The deprivation of a child from their parent can be detrimental to the well being of not only the child but also to the parent. Gaining custody over your child in NSW is a complex yet prevalent concern that has alarmingly increased in the past recent years. When a couple divorces or separates, one of their primary worries is their child’s rights and duties. When discussing parenting issues in family court, the welfare of the child takes precedence. The best interests principle intends to protect children from all forms of harm, whether physical, sexual, or psychological.

What Is Custody?

In Australia, the term “custody” is rarely used in family law. This is due to the fact that the term is thought to have bad associations. Instead, the term “parental responsibility” is used in Australian law. According to Section 61B of the Family Law Act (1975), the term parental responsibility in relation to the child refers to all of the responsibilities, powers, obligations, and authority that parents have in relation to their children under the law. Parental responsibility includes both short-term and long-term decisions that impact the child’s life. This can include decisions about the child’s or children’s safety, education, and residency. A primary consideration under the best interests principle, according to Section 60CC of the Family Law Act (1975), is that the child has a purposeful and wholesome relationship with both parents. This relates to the assumption of equal parental rights. According to the Family Law Act (1975), both parents will have equal responsibility for the child, as well as equivalent power to make both immediate and long-term decisions in the child’s life. When discussing shared parental responsibility for both parents in NSW, it is important to remember that both parents will have equal shared parental responsibility. However, the Courts have the authority to overturn this presumption if they are content that assigning shared responsibility to both parents is detrimental to the child.

What Are Sole Custody Rights In NSW?

Sole custody means that only one parent will have total control over the child’s life. This is referred to as sole parental responsibility. When both parties have equal shared parental responsibility, they can make plans to exercise their custodial rights in NSW. These can take the form of informal parenting plans or more official consent orders. When a parent has sole custody, they are not required to share the child with the non-custodial parent. It should be noted that sole custody does not always imply that the child will have no interaction with the non-custodial parent. Only in extreme cases that involve abusive behavior can the court issue a no-contact command against the non-custodial parent. This is most common when one parent has subjected the other parent and child to family violence in the form of physical, psychological, or sexual abuse. For example, in the case of West and West [2016] FamCAFC 238, the mother was given exclusive parental responsibility for the child, and the father was barred from visiting the child for the mother’s and the child’s self-security.


How To Make Parenting Arrangements In Cases Of Equal Custody?

Many parents in NSW are particularly worried about parenting arrangements when discussing custodial rights. Indeed, custody battles are still among the most common problems that occur after a divorce or separation. Because of how emotionally draining a separation or divorce can be, all parties involved are more concerned about custody issues. This frequently results in unnecessary disagreements and conflicts. The most essential thing for both sides  to have equal custodial rights in New South Wales is to devise a plan or agreement that allows them to spend equivalent time with the child whenever possible. To do so, both parties must engage in a constructive discussion. When sides are not able to reach an amicable agreement, they frequently seek consultation. It is critical to be able to speak freely in order to create effective parenting plans. Furthermore, each party must be adaptable and cooperative. Parenting plans are unofficial agreements that are not legally enforceable. Following that, the parties must apply to the court for consent orders. The plans become legally enforceable when consent orders are issued. Parties who violate the orders can be penalized by the courts. In the event of a serious conflict in which the parties are unable to reach an agreement, they must file an application with the court. The court will make parenting orders based on the family’s circumstances and the child’s best interests.

Parenting Orders

If you and your ex-spouse are unable to come to an agreement, you can petition the court for a variety of parenting orders. A set of court rulings concerning parenting arrangements for a child. You and the other party may agree on a parenting plan or seek consent orders from the court.

A parenting order may deal with one or more of the following:

  • Who the child/children will reside with;
  • how much time the child/children will spend with each parent as well as other people (such as grandparents);
  • the allotment of parental responsibility;
  • how the child/children will interact with a parent they do not currently reside with or other people;
  • Any element of the child/care, children’s safety, or advancement

Can the Child be Relocated to Another State or Country?

If the child/children are ordered to spend some time with both parties, they cannot be migrated or even travel internationally without permission. If an agreement can’t be reached, an application to the court for orders enabling the travel must be made. The court will look into all matters related to the child’s or children’s best interests.

What about Child Support?

The Child Support (Assessment) Act 1989 governs this area, which is carried out by The Department of Human Services rather than the Family Law courts. In general, both parents are obligated to pay child support if they have the financial means to do so. The amount of child maintenance paid by each parent is calculated using the following information:

  • Each parent’s income.
  • The percentage of nights each parent has custody of the child or children.
  • The number of children under the age of 13 and those between the ages of 13 and 17.
  • If the parent has any other children.
  • If there are circumstances that justify it, an application can be made to the Family Law courts to depart from the child support formula assessment (e.g. one party has significantly more assets or financial resources than the other).


Custody laws are important in NSW as these laws protect the rights of children after their parents’ divorce. These laws ensure the child’s rights are not compromised and that the child is protected at all cost.

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