Child Custody (Parenting Orders)
Written in plain language for general understanding. This is educational content, not legal advice. Based on Commonwealth Acts of Parliament, federal regulations, and official government guidance.
What is this right?
In Australia, child custody is handled through parenting orders under Part VII of the Family Law Act 1975. Every decision about a child must be based on the best interests of the child, which is the paramount consideration (s 60CA).
The court presumes that equal shared parental responsibility is in the child's best interest — meaning both parents share major long-term decisions about education, health, religion, and the child's name (s 61DA). This is not the same as equal time. The presumption does not apply if there is family violence or child abuse (s 61DA(2)).
When deciding how much time a child spends with each parent, the court considers the benefit of a meaningful relationship with both parents and the need to protect the child from harm (s 60CC). The court looks at factors such as the child's views, the nature of the relationship with each parent, practical difficulties with proposed arrangements, and any family violence.
Parents can agree on a parenting plan without going to court, or apply for consent orders to make their agreement legally binding.
When does it apply?
These rules apply when:
- Parents (married, de facto, or otherwise) are separating or in dispute about arrangements for children under 18.
- Grandparents or other relatives may also apply for parenting orders in certain situations.
- You must attempt family dispute resolution (FDR) before filing in court, unless there is family violence or urgency (s 60I).
What should you do?
- Try to agree on a parenting plan — courts prefer parents who cooperate. A parenting plan is a written agreement signed by both parents.
- Attend family dispute resolution before applying to court. You need a s 60I certificate to file.
- Focus on the child's best interests — the court considers the child's wishes (depending on age and maturity), safety, and the benefit of a relationship with both parents.
- Document any safety concerns — if there is family violence or abuse, keep records with dates and details.
- Apply for consent orders if both parents agree — this makes the arrangement legally enforceable.
What should you NOT do?
- Don't withhold a child from the other parent unless there is a genuine and immediate safety concern — this can damage your case.
- Don't assume equal shared parental responsibility means equal time — the court decides time arrangements separately based on what is best for the child.
- Don't coach the child or speak negatively about the other parent — the court takes this seriously.
- Don't breach a parenting order — contravention can result in fines, community service, or even imprisonment (s 70NAE).
Legal Resources
We may earn a commission if you use these services — at no extra cost to you. This supports our mission to make legal information free for everyone.