Parenting and Children in Family Law
Navigating parenting arrangements after separation can be challenging. In Australia, family law parenting is governed by the
Family Law Act 1975 (Cth), which prioritises the best interests of the child. Whether you are dealing with child custody, parenting plans or parental responsibility, understanding your legal rights and responsibilities is essential.
What is family law parenting?
Family law parenting refers to legal matters concerning who a child lives with, how much time they spend with each parent, and how parental responsibilities are shared. The law encourages parents to work together to make decisions about their children, but if disputes arise, the courts may step in to make legally binding decisions.
Parental responsibility: who makes decisions for the child?
Under Australian family law, each parent has parental responsibility unless a court orders otherwise. However, there is no presumption that the court should order equal shared parental responsibility. Unless a court orders otherwise, parents are encouraged to consult each other about major long-term issues, where it is safe to do so, and to regard the child’s best interests as the paramount consideration. These issues include the child’s:
- Education
- Healthcare
- Religious and cultural upbringing
- Name
- Changes to living arrangements that make it significantly more difficult for the child to spend time with a parent
The court may order joint or sole decision-making about all or specified major long-term issues, depending on the child’s best interests. Where an order provides for joint decision-making, each person must consult the other and make a genuine effort to reach a joint decision, unless the order specifies otherwise.
Parenting Plans v Parenting Orders
A parenting plan is a written agreement between parents that outlines parenting arrangements and decision-making responsibilities. It is:
- Flexible and can be changed by mutual agreement
- Not legally enforceable
- Useful for co-parents who can communicate effectively
If parents cannot agree, they may apply to the Federal Circuit and Family Court of Australia (FCFCOA) for parenting orders, which are legally enforceable. Parenting orders may cover:
- Where the child lives (previously called “child custody”)
- Time spent with each parent (formerly visitation rights)
- Parental responsibility and decision-making
- Communication between parents and children
Once made, breaching a parenting order can result in legal penalties, including changes to parenting arrangements.
Child Custody and Visitation in Australia
Australia no longer uses the term "child custody" or “visitation”, instead, the law refers to "lives with" and "spends time with" arrangements. The court may order:
- Equal shared time – If it is in the child’s best interests and practical for both parents.
- Primary residence with one parent – The child lives mainly with one parent and spends scheduled time with the other.
- Supervised time – If there are concerns about the child’s safety, visits may be supervised by a professional or family member.
Does the Court Automatically Order 50/50 Custody?
No. There is no presumption of equal time and no requirement for the court to consider equal time before other arrangements. Equal time may be ordered where it is in the child’s best interests. The focus is always on ensuring the child's safety, stability, and emotional well-being.
Changing parenting arrangements
Parenting arrangements may need to be changed if:
- A parent relocates to a different city or state
- The child’s needs significantly change (e.g., schooling, health issues)
- A parent consistently fails to follow parenting orders
Before reconsidering a final parenting order, the court must consider whether there has been a significant change in circumstances and be satisfied that reconsideration is in the child’s best interests. The court may also reconsider the order with the agreement or consent of all parties. Parents who agree on changes can seek consent orders or, where permitted, make a subsequent parenting plan. Legal advice should be obtained about how a parenting plan affects existing orders.
Do I need a lawyer for parenting disputes?
Before applying for parenting orders, parents generally must attempt family dispute resolution and obtain a section 60I certificate, unless an exemption applies, such as urgency, family violence or child abuse.
Before engaging a lawyer, where appropriate, we encourage parties to participate in counselling and mediation to reach an mutually suitable agreement that promotes the best interests of the child/ren. You can find ifnormation about government funded family relationship services at Family Relationships Online.
While parents are encouraged to reach agreements through mediation and dispute resolution, taking legal action may be necessary in urgent cases, where mediation is not suitable or if disputes become complex. A family lawyer can help with:
- Legally assisted mediation
- Negotiating parenting arrangements
- Applying for parenting orders
- Enforcing or modifying existing orders
You can find more information about family law parenting issues on our website. If you are dealing with a family law parenting issue and need expert family law advice, contact Hanna Lawyers for assistance from a qualified family lawyer.
Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a parenting issue, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.
