may contemplate the ability of each parent to meet the child’s needs based on the child’s age,
gender, and physical, moral, intellectual, and psychological needs. 52
V. CHILD CUSTODY IN AUSTRALIA
To better assess the potential consequences of joint custody arrangements generally and a
potential joint custody presumption, an exploration of the outcomes that arise out of such a
presumption are helpful to determine whether joint or sole custody better serves the best interest
of the child. In Australia, joint custody became the presumption adopted into legislation. 53 After
joint custody was implemented on a large scale, studies were conducted to discover whether the
new presumption had achieved its intended goals. 54
A. Family Law Act (1975)
Australia’s Family Law Act of 1975 explained that both parents are responsible for the
care and welfare of their children until the children turn eighteen years old. 55 In 2006, Australia
reformed their approach to family law; it actively endorsed the presumption that arrangements
that involve equal shared responsibilities and cooperation between the parents is in the best
interest of the child in most cases. 56
Prior to the 2006 reform, joint custody occurred in less than 10% of the divorcing
families in Australia. 57 Therefore, the custodial arrangement and presumption that the legislature
52 See ELROD, supra note 12, at § 1: 7.
53 Family Law Act, 1975, (Cth) s 61DA, (Austl.), available at
54 Jennifer McIntosh, Legislating for Shared Parenting: Exploring Some Underlying Assumptions, 47 FAM. CT. REV.
389, 389 (2009).
55 Family Law Act, 1975 (Cth) s 61DA, (Austl.), available at
56 Family Law Act 1975 Sect. (Cth) s 65DAA( 3) (Austl.), available at