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Legal Hotline› Australia› Child Custody & Parenting

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Child Custody & Parenting

Worried about who your children will live with and how much time they'll spend with you? Australian family law doesn't use the word "custody" any more — it focuses on what's in your child's best interests. Call the free hotline now to understand where you stand and, if you need one, get a family lawyer on your matter fast.

Call now — 1800 951 176

Free legal information, 24/7. Speak to a real lawyer about your situation, any time.

If your child has been taken or kept from you, or there's family violence involved, don't wait. The court can make urgent and recovery orders to have a child returned, but you need to act quickly — call now and we'll help you move today.

Child Custody & Parenting at a glance

Which law applies
Federal law — the Family Law Act 1975 (Cth), the same across every state and territory
Which court
The Federal Circuit and Family Court of Australia
The guiding test
What is in the best interests of the child — there's no automatic right to equal or "50/50" time
Before you can go to court
You generally must try family dispute resolution (mediation) and get a section 60I certificate first
Key exception
Mediation can be skipped where there's family violence, child abuse, or genuine urgency
Ways to agree
An informal parenting plan, legally binding consent orders, or — if you can't agree — a court order
If a child is withheld
The court can make a recovery order directing police to find and return the child

Australia doesn't use the word "custody" any more

It's the word everyone reaches for, but Australian family law dropped "custody" and "access" years ago. Today the law talks about **parental responsibility** (who makes the big decisions for a child), who a child **lives with**, and who a child **spends time with**. The shift isn't just wording — it reflects that the law is built around the child, not around a parent "winning" them.

So when people say they want "full custody", what they usually mean is a mix of two things: being the parent the child mainly lives with, and having the main say in major decisions. Those are separate questions under the law, and they're decided separately.

If the language feels confusing, that's normal — it trips up almost everyone at the start. A quick, free call will translate your situation into the terms the court actually uses, so you know what you're really asking for. Talk it through with a lawyer now →

Everything turns on the child''s best interests

Since major reforms took effect on **6 May 2024**, there is one overriding question in every parenting matter: what arrangement is in the **best interests of the child**? The law no longer starts from any presumption that parents should share decision-making equally, and there is no presumption of "50/50" or any other set split. The court decides each case on its own facts.

To work out a child's best interests, the court must weigh a focused list of factors, including: arrangements that promote the **safety** of the child and their carers (including any history of family violence); the **child's own views**; the child's developmental, psychological, emotional and cultural needs and each parent's capacity to meet them; and the benefit to the child of a relationship with both parents and other significant people — **where it is safe**. For an Aboriginal or Torres Strait Islander child, the court must also consider the child's right to enjoy their culture.

Because safety now sits at the front of the list, family violence is a central consideration in almost every parenting decision. If safety is a worry in your family, say so on the call — it changes how a matter should be approached from the very start. Talk it through with a lawyer now →

Parental responsibility and the big decisions

Parental responsibility is about the **major long-term decisions** in a child's life — things like their schooling, their health, their name, their religious and cultural upbringing, and any significant change to where they live. It's a separate question from how much time a child spends with each parent.

With the old presumption of equal shared parental responsibility now removed, the court no longer assumes parents must make these decisions jointly. It decides what arrangement suits the child. That said, where it's safe to do so, the law still encourages parents without court orders to consult each other and try to agree on the major issues together.

Day-to-day choices — what the child eats, screen time, the small stuff — are generally made by whoever the child is with at the time, not jointly. Sorting out who decides what, and how, is one of the first things worth getting clear, and it's exactly what a lawyer can help you map out. Talk it through with a lawyer now →

Mediation usually comes before court

In most cases you can't simply file in court. Before applying for parenting orders you generally must make a genuine attempt at **family dispute resolution** — a structured form of mediation run by an accredited practitioner — and obtain a **section 60I certificate** as proof you tried. Without that certificate (or an exemption), the court will usually reject your application.

There are important exceptions. You don't need to attempt mediation first where there has been **family violence or child abuse**, where the matter is genuinely **urgent**, or in certain other situations — for example where a child has been taken. In those cases you file an affidavit explaining why mediation isn't required.

Mediation works for a lot of families and is faster and far less stressful than court. But it isn't right for everyone, and pushing the wrong matter into mediation can be harmful. A free call will help you tell which camp you're in before you commit to anything. Talk it through with a lawyer now →

Parenting plans, consent orders and court orders

There are three main ways parenting arrangements get locked in, and the difference between them matters.

A **parenting plan** is a written agreement you and the other parent work out and sign yourselves. It's flexible and free to make — but it is **not legally enforceable**, so it relies on goodwill.

**Consent orders** are arrangements you both agree on, then ask the court to approve. Once made they are **orders of the court and legally binding**, without anyone having to attend a hearing — the best of both worlds when you can agree.

A **parenting order** made after a hearing is what happens when you **can't** agree: a judge decides and makes binding orders. Breaching binding orders can have serious consequences.

Which path fits depends on how much you and the other parent agree, and on safety. Getting that choice right early saves enormous time, cost and stress later — and it's a five-minute conversation on the phone. Talk it through with a lawyer now →

If your child has been taken or kept from you

This is the situation where moving fast genuinely matters. If the other parent has taken your child and won't return them, or is keeping the child against an existing arrangement, the court can make a **recovery order** — an order that can direct and authorise police to find, recover and return the child to you.

If there are no orders in place yet, you can apply for a parenting order and the recovery order at the same time, and ask for an **urgent hearing**, which a registrar will treat as a priority. Where someone has breached existing orders, you may also be able to file a contravention application.

These are some of the most distressing situations in family law, and the right first step depends heavily on the detail. **Don't wait and hope** — call the hotline now so you can act today, not next week. Talk it through with a lawyer now →

How Legal Hotline helps — right now

Anything to do with your children is stressful, and the worry doesn't keep office hours. Legal Hotline is a free service you can call any time, day or night. In a single call we'll help you understand the terms the law actually uses, whether mediation applies to you, and what your realistic options are.

If you need a lawyer, we'll connect you with an experienced family lawyer who can act for you — **anywhere in Australia, usually within the hour**. There's no cost to call and no obligation. If you're separating, or things have changed and you don't know where you stand, the smartest first step is simply to pick up the phone. Talk it through with a lawyer now →

Sorting out parenting, step by step

1
Get clear on what you''re asking forWork out — in the law's own terms — who you want the child to live with, how much time they'd spend with each parent, and who makes the major decisions. A quick call turns "I want custody" into a clear, realistic position.
2
Try mediation (and get your certificate)In most cases you attempt family dispute resolution with an accredited practitioner and obtain a section 60I certificate. If there's family violence, child abuse or urgency, this step can be skipped.
3
Agree it, if you canIf you reach agreement, lock it in — either as a flexible parenting plan or, for something legally binding, as consent orders approved by the court without a hearing.
4
Apply to court if you can''t agreeWhere agreement isn't possible, you file for parenting orders in the Federal Circuit and Family Court, and the court decides based on the child's best interests. Urgent and recovery applications are dealt with as a priority.

Child Custody & Parenting — your questions answered

Do I have a right to 50/50 custody of my child?

No. Australian law has no presumption of equal or "50/50" time, and since the May 2024 reforms it no longer presumes parents must share decision-making equally either. The court decides what's in the child's best interests, which sometimes means equal time and often doesn't. Call to find out what's realistic in your situation.

Why does everyone keep saying not to use the word "custody"?

Because the law dropped it. Instead of "custody" and "access", Australian family law talks about parental responsibility (who makes the big decisions), who a child lives with, and who a child spends time with. They're separate questions, decided separately — and getting the terms right helps you ask for the right thing.

Do I have to go to mediation before court?

Usually yes. In most cases you must make a genuine attempt at family dispute resolution and get a section 60I certificate before you can apply for parenting orders. There are exceptions — including family violence, child abuse and genuine urgency — where you can skip mediation and go straight to court. A free call will tell you which applies to you.

My ex won''t return our child — what can I do?

Act fast. The court can make a recovery order that can direct police to find and return your child, and you can ask for an urgent hearing. If there are no orders yet, you apply for a parenting order at the same time. This is one of the situations where every day matters, so call now.

What''s the difference between a parenting plan and consent orders?

A parenting plan is a written agreement you make yourselves — flexible and free, but not legally enforceable. Consent orders are an agreement the court approves, so they're legally binding without a hearing. If trust is an issue, consent orders give you something you can actually enforce.

How does family violence affect a parenting case?

It's central. Since May 2024, the safety of the child and their carers sits at the front of the list of factors the court must weigh, and a history of family violence is directly relevant. It can also exempt you from having to try mediation first. If safety is a concern, tell us on the call — it shapes the whole approach.

Does my child get a say in where they live?

The child's views are one of the factors the court must consider, given appropriate weight for the child's age and maturity. Children are never forced to "choose", and their views aren't the only thing that matters — but they do count. A lawyer can explain how a child's wishes are heard in practice.

Is calling Legal Hotline really free?

Yes. The information line is free and open 24 hours a day, 7 days a week. Call any time to understand where you stand — no cost, no obligation.

Not sure where you stand? Find out in minutes.

Call the free hotline any time. We'll help you understand your options and, if you need one, connect you with a lawyer — anywhere in Australia, usually within the hour.

Call now — 1800 951 176

Free legal information. Not legal advice.

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Last updated 6 June 2026
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