Deciding how children will be cared for is usually the first and most pressing question after a separation. It is also the area where expectations and the law most often diverge: parents frequently arrive with a fixed idea of “custody” or an entitlement to equal time, neither of which reflects how Australian family law actually works. This guide explains the legal framework, the practical ways arrangements are recorded, and what happens when parents cannot agree.
Parenting matters are governed by federal law — the Family Law Act 1975 (Cth) — and are dealt with in the Federal Circuit and Family Court of Australia. The same framework applies whether the parents were married, in a de facto relationship, or never lived together.
Parental responsibility
“Parental responsibility” means all the duties, powers, responsibilities and authority that parents have in relation to their children. Each parent has parental responsibility for a child under 18, and separation does not change that on its own; it continues unless a court order says otherwise.
Parental responsibility is about decision-making, not about how much time a child spends with each parent. Where parents share responsibility for major long-term issues — such as schooling, significant health decisions, religion and a change of name — the Act encourages consultation and a genuine effort to reach a joint decision. A court can order that decision-making about major long-term issues be joint, or allocate it to one parent alone. Day-to-day decisions made while a child is in a parent’s care do not require consultation.
Since the 2024 reforms, there is no presumption of equal shared parental responsibility and no statutory pathway that requires a court to consider equal or substantial time as a starting point. The court simply decides what is in the child’s best interests.
Best interests: section 60CC
The child’s best interests are the paramount consideration in making a parenting order. Section 60CC of the Family Law Act lists the matters the court must consider, including:
- what arrangements would promote the safety of the child and each person who cares for the child, including safety from family violence, abuse, neglect and other harm;
- any views expressed by the child;
- the developmental, psychological, emotional and cultural needs of the child;
- the capacity of each proposed carer to provide for those needs;
- the benefit to the child of having a relationship with their parents, and with other people significant to them, where it is safe to do so; and
- anything else relevant to the particular circumstances of the child.
The court must also consider any history of family violence and any family violence orders, and for Aboriginal and Torres Strait Islander children there is a specific requirement to consider the child’s right to enjoy their culture and connection to family, community, country and language.
In practice this means safety comes first, and workable arrangements are then built around the child’s age, schooling, existing relationships and the practical realities of where each parent lives and works.
Parenting plans
A parenting plan is a written agreement between the parents, signed and dated, dealing with matters such as where a child lives, time with each parent, communication and decision-making. It is not filed with a court and it is not enforceable as an order.
Its advantages are flexibility and speed: a plan can be changed at any time by a further written agreement, without going near a court. Its limitation is the flip side of the same point — if one parent stops following it, the other has no direct means of enforcement. A parenting plan suits parents who communicate reasonably well and who expect arrangements to evolve as children grow.
Consent orders
Where parents want an agreement to be binding, they can apply to the court for consent orders — orders made in the terms the parties have agreed, without a contested hearing. The court must still be satisfied that the orders are in the child’s best interests before making them.
Once made, a parenting order can be enforced, and contravening it without reasonable excuse exposes the parent in breach to a range of consequences. Consent orders are appropriate where arrangements are settled, where there is a history of one parent not honouring informal agreements, or where certainty is needed for schooling, travel or relocation.
Family dispute resolution
Before applying to a court for a parenting order, section 60I of the Family Law Act generally requires the applicant to file a certificate issued by a registered family dispute resolution practitioner. Section 60I(8) describes the kinds of certificate that may be issued, including where a party did not attend, where a genuine effort was made, and where the practitioner considered the matter not appropriate for family dispute resolution.
The requirement does not apply in every case. Exceptions include applications for consent orders, cases involving family violence or child abuse (or a risk of either), urgency, and circumstances where a party is unable to participate effectively. Where an exception is relied on, the court will expect the basis for it to be set out in the application material.
When a court becomes involved
If agreement cannot be reached, a parenting application is filed in the Federal Circuit and Family Court of Australia. The Act allows any parent, the child, a grandparent, or any other person concerned with the child’s care, welfare or development to apply.
Proceedings typically involve interim arrangements while the matter progresses, a family report or other expert evidence in appropriate cases, and further attempts at resolution before any final hearing. Independent Children’s Lawyers are appointed in some matters. Once final parenting orders are in place, they are not readily reopened: a court will only reconsider final orders where there has been a significant change of circumstances and reconsideration is in the child’s best interests, or where the parties agree.
Safety and urgent protection
Where there are safety concerns, parenting arrangements and protective proceedings often run alongside each other. In Victoria, an application for a family violence intervention order is made in the Magistrates’ Court, and the family law court must be told about any family violence order affecting the child or a member of the child’s family. Conditions in an intervention order and the terms of a parenting order need to be considered together so that they are consistent and workable.
Practical points
- Focus on the arrangement rather than the label. “Custody” and “access” are not terms used in the Act.
- Keep arrangements age-appropriate and specific: handover times and places, school holidays, special days, travel and communication.
- Record what is agreed. Even a parenting plan reduces later disagreement about what was intended.
- If safety is an issue, get advice promptly — the protective and parenting pathways interact.
- Take advice before relocating with a child or applying for a passport; both commonly require consent or an order.
How we can help
Holt & Macdonald advises parents in Ringwood and Melbourne’s eastern suburbs on parenting arrangements — negotiating and drafting parenting plans, preparing applications for consent orders, attending family dispute resolution, and acting in contested parenting proceedings where a resolution cannot be reached. We also act in family violence intervention order matters in the Magistrates’ Court where safety issues arise alongside parenting questions.
