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Parenting and Child Custody

Working out how you and your children’s other parent will share time, make decisions and stay in touch after separation is rarely straightforward, but it’s natural to feel overwhelmed by where to start. This page explains your options, how the law approaches these decisions, and how Empower Family Law & Mediation can help you reach an arrangement that works for your family.

What are my options?

There are three main ways parenting arrangements can be recorded, each with a different level of formality:

Many families can agree a parenting plan or consent orders without going to Court. We can help you negotiate an arrangement, document it properly, and if you agree, apply for consent orders so it’s legally binding.

How are parenting arrangements decided if we can't agree?

If you and the other parent can’t reach agreement between yourselves, the next step is usually Family Dispute Resolution (FDR). FDR is a form of mediation with an accredited Family Dispute Resolution Practitioner, aimed at helping you reach an agreement without going to Court.

In most cases, you’re required to make a genuine effort at FDR and obtain a certificate (Section 60I Certificate) before you can apply to the Court for parenting orders. This requirement doesn’t apply in some circumstances, such as where there is family violence or child abuse, or where the matter is urgent

If FDR doesn’t resolve things, or isn’t appropriate in your circumstances, we can help you apply to the Court and represent you through that process.

What does the Court consider when deciding a parenting matter?

Under the Family Law Act 1975, Section 60CC outlines how a Court determines what is in a child’s best interests. Following amendments that commenced in May 2024, the previous two-tiered system of primary and additional considerations was replaced by a non-hierarchical list of six factors to provide greater clarity and address safety, cultural, and practical concerns.

Following the amendments, the Court must consider the following six factors:

The Court must also specifically consider any history of family violence and any family violence orders that apply. Where a child is Aboriginal or Torres Strait Islander, the Court must additionally consider the child’s right to enjoy and stay connected to their culture, including through family, community, country and language.

There is no presumption that time or decision-making responsibility should be shared equally and every family’s arrangement is worked out based on what’s best for their children.

A note on safety

If family violence is part of your situation, you’re not alone, and support is available. You don’t need to manage this by yourself, please talk to us so we can help you plan for your safety and your children’s safety as part of any parenting arrangement.

If you need to speak to someone urgently, 1800 RESPECT (1800 737 732) or Safe Steps (1800 015 188) provide free, confidential support 24 hours a day, and in an emergency, you should call 000.

How we can help

We apply these same principles to help you negotiate parenting arrangements that put your children first. Our focus is on using our experience to help you reach agreement with your former partner wherever possible. Where you’re able to agree, we can help you formalise that agreement through consent orders. Where you can’t agree, we have the experience and knowledge to represent you through mediation and, if needed, litigation.

Every family is different, and the right arrangement depends on your circumstances. Please contact us on (03) 7020 6542 to talk through your options with our team.

FAQ’s

Does a parent automatically get equal time with their children?

No. There is no automatic right to equal time, and no presumption in the law that decision-making or time should be shared equally. Every arrangement is based on what’s in your children’s best interests.

What happens if we simply can't agree?

You’ll generally need to attempt Family Dispute Resolution first. If that doesn’t resolve things, either of you can apply to the Court, which will make parenting orders after considering your children’s best interests.

Can grandparents or other family members apply for time with a child?

Yes. Grandparents and other people significant to a child, such as aunts, uncles or stepparents can apply to the Court for orders, and the Court can consider the benefit to the child of those relationships.

What if there is family violence involved?

The Court is required to consider your children’s safety and any history of family violence when making parenting orders, and the usual requirement to attempt mediation first doesn’t apply where there are family violence or child safety concerns. Please tell us about this early so we can help you plan appropriately.

Is a parenting plan legally enforceable?

No. A parenting plan is a written agreement, but it isn’t binding in the same way as consent orders or parenting orders. If you want your agreement to be enforceable, we can help you apply for consent orders.

How long does it take to sort out parenting arrangements?

It depends on whether you and the other parent can agree. Arrangements reached by agreement can often be documented in a matter of weeks. Contested Court proceedings usually take considerably longer. We’ll give you a realistic timeframe once we understand your situation.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

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What "best interests" actually means

The Court must treat the best interests of the child as its paramount consideration. The Family Law Act 1975 sets out what it must weigh in deciding what those interests are:

When it considers safety, the Court must take into account any history of family violence, abuse or neglect, and any family violence order that applies or has applied to the child or a member of the child's family.

There is no starting presumption about how much time a child spends with each parent, and no formula. Two families with similar facts can end up with different arrangements.

Aboriginal and Torres Strait Islander children

For an Aboriginal or Torres Strait Islander child, the Court must also consider the child's right to enjoy their culture, by having the support, opportunity and encouragement necessary:

This is a distinct consideration in its own right, not simply part of the general "cultural needs" factor.

Who can apply, and where

Parenting orders are made under Part VII of the Family Law Act 1975. Despite the name, they are not limited to parents: an order can be sought by a grandparent, or by any person concerned with the care, welfare and development of the child. See our grandparents and other carers page.

The Court has jurisdiction over children in every state and territory except Western Australia, where the Family Court of Western Australia deals with these matters.

One limit is easy to miss. If your child is in care under a state or territory child welfare law, the Court cannot make a parenting order about them except with the consent of the relevant child welfare authority — and that applies even where the child comes into care after your family law proceedings have already started.

When arrangements are not working

Separate processes exist for the situations people most often ring us about:

An Independent Children's Lawyer

In some parenting cases the Court may appoint an Independent Children's Lawyer to represent the child's interests. An ICL does not take instructions from the child, and does not act for either parent. Their role is to form an independent view of what arrangements are in the child's best interests and to put that to the Court, which can include arranging reports and gathering material from schools, doctors or child protection authorities.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on children's matters, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.

What does the Court mean by the child's best interests?

It is the paramount consideration in any dispute about children, and the Act sets out what must be weighed. The matters are: what arrangements would promote the safety of the child and of each person who has care of the child, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm; any views expressed by the child; the child's developmental, psychological, emotional and cultural needs; the capacity of each person who has or is proposed to have parental responsibility to provide for those needs; the benefit to the child of being able to have a relationship with their parents and with other people who are significant to them, where it is safe to do so; and anything else relevant to the particular circumstances of that child.

Is there a presumption that children spend equal time with each parent?

No, and this is one of the most widely misunderstood points in Australian family law. The presumption of equal shared parental responsibility was removed from the Family Law Act on 6 May 2024, and the Court has noted that there was never a requirement for children to spend equal time with each parent even while the presumption existed. Parental responsibility is now decided by reference to the best interests factors rather than from a starting presumption, which gives the Court more flexibility to make the arrangement that actually suits the child. Articles, templates and advice circulating online that describe the presumption as current law are out of date, so check the date of anything you read on this.

Does my child get to choose who they live with?

No. A child's views are one of the matters the Court must consider, and they tend to carry more weight as a child matures and depending on the strength and consistency of the view expressed, but children do not make the decision and are not asked to choose between their parents. Children do not give evidence in family law proceedings. Where the Court needs to understand a child's circumstances it may order a report, and the person preparing it decides whether to observe the child with each parent and whether to meet the child separately. Parties are expected to cooperate with requests for the child's participation. That is how children's experiences are put before the Court.

Is a parenting plan legally enforceable?

No. A parenting plan is a written agreement between parents and it is not legally enforceable, which is the key difference between it and parenting orders made or endorsed by the Court. A plan can still be useful: it records what you have agreed in a form you can both refer to, and it can be changed by agreement without returning to court, which suits families whose arrangements evolve. But it cannot be enforced if one party stops following it, and it can affect existing court orders, so take advice about the consequences before signing one, particularly where parenting orders are already in place and the plan would operate inconsistently with them.

Who can apply for parenting orders?

Not only parents. An order can be sought by a grandparent, or by any person concerned with the care, welfare and development of the child, which in practice can include a step-parent, an aunt or uncle, an adult sibling, or a close family friend who has been caring for the child. What matters is the applicant's actual connection to the child's care and wellbeing rather than their legal relationship. One limitation is easy to miss: if the child is in care under a state or territory child welfare law, the Court cannot make a parenting order about them except with the consent of the relevant child welfare authority, and that applies even where the child comes into care after proceedings have started.

What if the other parent does not follow the orders?

There is a dedicated compliance and enforcement process where a parenting order has been breached or not complied with, and it is a separate application rather than something raised informally. If a child who normally lives with you has not been returned, or is missing, you can apply for a recovery order, which can authorise the child's return and the involvement of authorities in locating them. Where a child has been taken overseas without permission or not returned as agreed, the Hague Convention framework may apply depending on the country involved, and separate passport proceedings exist where there is a risk of removal. Each of these is time-sensitive, so act quickly rather than waiting.

What is an Independent Children's Lawyer?

In some cases the Court appoints an Independent Children's Lawyer to represent the child's interests. They do not act for either parent and they do not take instructions from the child, which can surprise parents who expect the ICL to advocate for what the child has said. Their role is to form an independent view of what arrangements are in the child's best interests and to put that view to the Court, which can include arranging reports and gathering material from schools, doctors or child protection authorities. An appointment is more likely where the issues are finely balanced, where safety concerns are raised, or where the child's circumstances are complex enough to need independent investigation.

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