Parenting orders and custody law in Australia: a plain-English guide for 2026

Custody in Australia: the words the law uses

Many parents search for custody law, but the parenting rules in Part VII of the Family Law Act 1975 use other words.

• Parental responsibility: all the duties, powers and authority that parents have for a child.
• Lives with and spends time with: where the child lives, and time with a parent or another person, such as a grandparent.
• Communicates with: calls, video chats, letters and messages.
• Major long-term issues: the child's education, religious and cultural upbringing, health and name, plus moves that make time with a parent much harder.
• Parenting order: a court order that deals with any of these things.

Under section 61C, each parent has parental responsibility for a child under 18, and separation or remarriage doesn't change that. It applies whether or not the parents ever married, and it stays the position until a court order changes it.

Day-to-day choices aren't major long-term issues, and the Family Court of Western Australia gives food and clothing as examples. Our plain-English glossary of custody terms covers other words you may meet.

What changed on 6 May 2024

The Family Law Amendment Act 2023 rewrote the parenting rules, and most changes started on 6 May 2024. Many websites still describe the old law, so check the date of anything you read.

The enforcement rules for broken orders were also amended, and existing orders stayed in force. The Federal Circuit and Family Court of Australia (FCFCOA) explains the timing. Most of the new law applies to cases running on 6 May 2024, unless the final hearing had started. The court also notes that the law has never required children to spend equal time with each parent.

What a parenting order can cover

Under section 64B, a parenting order can deal with:

• who the child lives with, and the time they spend with other people
• who holds parental responsibility, including decisions on major long-term issues
• how the child communicates with other people
• the steps to take before asking to change the order, and how disputes get resolved
• any other part of the child's care, welfare or development

Interim orders, also called interlocutory orders, apply until the case ends, while final orders bring it to a close. Consent orders are orders both parties agree on, and they're just as binding as orders made after a hearing.

Decision-making can be joint or sole, for all or some major long-term issues. With joint decision-making, each person must consult the other and make a genuine effort to agree (section 61DAA). The common search term "sole parental responsibility" describes an order that gives decision-making to one parent alone.

Parents, the child, grandparents and anyone concerned with the child's care can apply for a parenting order (section 65C).

If you and the other parent can't communicate, our guide to parallel parenting explains order terms that reduce contact. For health decisions, see medical decisions after separation.

How the court decides: the best-interests factors

The child's best interests are the paramount consideration, which means they come first (section 60CA). Section 60CC then lists six general matters the court must consider:

1. what arrangements would promote the safety of the child and each person caring for them, including from family violence, abuse, neglect or other harm
2. "any views expressed by the child"
3. "the developmental, psychological, emotional and cultural needs of the child"
4. each carer's capacity to meet those needs
5. the benefit of a relationship with both parents and other significant people, "where it is safe to do so"
6. "anything else that is relevant to the particular circumstances of the child"

On safety, the court must look at any history of family violence, abuse or neglect and any family violence order. For an Aboriginal or Torres Strait Islander child, it also weighs the child's right to enjoy their culture.

The section doesn't rank the six matters. When parents ask for consent orders, the court may consider these matters but doesn't have to. Our guide to what Australian courts look for in parenting cases shows how each factor meets real evidence.

Is there 50/50 custody in Australia?

No law sets a starting split of time. The old rule that linked equal time to equal shared parental responsibility was repealed on 6 May 2024.

Equal time is still possible, because parents can agree to it in a parenting plan or consent orders. A court can also order it if it suits that particular child under section 60CC.

The FCFCOA's guidance for parents lists what to think about, including the child's age, routine, school, after-school care and holidays.

Week-about is only one way to share care, and our custody schedule comparison shows how common rotations feel across a fortnight. For context, see Australian figures on care time and cooperation and our co-parenting cost statistics.

Your child's views and the independent children's lawyer

The court must consider any views your child expresses, but the Act sets no age at which a child decides where to live.

Nobody can make a child express a view (section 60CE), so courts usually hear children through professionals. A court child expert, called a family consultant in the Act, may write a report that includes the child's views (section 62G).

In some cases the court appoints an independent children's lawyer (ICL), who forms an independent view of the child's best interests. The ICL isn't the child's own lawyer, though they must put the child's views before the court.

Since 6 May 2024, the ICL must meet the child and offer a chance to share views. That duty lifts if the child is under 5, doesn't want to, or there are exceptional circumstances.

The FCFCOA says courts often order the parties to pay towards ICL costs. Our guide to the independent children's lawyer and family reports explains how to prepare.

Parents who were never married

The same parenting law applies whether parents married, lived together or never lived together. In every state and territory except Western Australia, the FCFCOA hears these cases under Part VII.

Each parent has parental responsibility from the start under section 61C. A person named as a parent on a birth register is presumed to be one (section 69R). An unmarried father doesn't need to apply for parental responsibility first. He follows the same path as anyone else, with family dispute resolution and then a court application if agreement fails.

Mothers and fathers start in the same legal position, and the six section 60CC matters don't mention a parent's gender.

Family dispute resolution comes first

Before applying for parenting orders, you usually need a certificate from a registered family dispute resolution (FDR) practitioner (section 60I). FDR is mediation focused on the children, and the practitioner helps you negotiate but can't impose a decision.

The certificate records one of these outcomes:

• the other party refused or failed to attend
• FDR wasn't appropriate, or began but wasn't appropriate to continue
• you both attended and made a genuine effort
• someone didn't make a genuine effort

The FCFCOA says Family Relationship Centres offer the first hour of joint sessions free of charge.

You can ask the court for an exemption on grounds such as child abuse, family violence or a risk of either. Urgency counts too, as does being unable to take part effectively. Some serious breaches of an order made in the last 12 months also qualify. You file an Affidavit – Non-filing of family dispute resolution certificate.

Our mediation preparation guide explains what to bring to the sessions.

Parenting plans and consent orders compared

A parenting plan is a written agreement, signed and dated by both parents and made free from threats, duress or coercion (section 63C). The FCFCOA says a parenting plan isn't legally enforceable. Even so, the court considers the latest plan when making orders, if that's in the child's best interests (section 65DAB).

Consent orders are parenting orders that the court makes on your agreement. You file an Application for Consent Orders with the proposed orders, and both parties sign and date each page. The court makes the orders only if they are in the child's best interests.

A later parenting plan can change how an earlier parenting order operates, unless the order says only a court can change it (section 64D). The plan itself still can't be enforced like an order. Between formal steps, our guide to parenting agreements shows how to put a verbal deal in writing.

How to apply for parenting orders

Outside Western Australia, parenting applications go to the FCFCOA, and you can file online through the Commonwealth Courts Portal.

1. Attempt FDR. Get a section 60I certificate, or prepare an exemption affidavit.
2. File an Initiating Application. Ask for final orders, and add interim orders if you need a decision sooner.
3. Add the required documents. These are a Notice of Child Abuse, Family Violence or Risk and a Genuine Steps Certificate. Add a Parenting Questionnaire unless you file an affidavit.
4. Support any interim request. An Affidavit – Family law and child support sets out the facts.
5. Pay the fee. The court gives your application a hearing date when it accepts it for filing.

Concession card holders and people in financial hardship may qualify for a fee exemption. Our page on how long parenting proceedings take walks through each court event. Before your first meeting, see our guide to free family law advice and Legal Aid.

Urgent and without-notice orders

If a child is at risk, ask for an urgent listing in your Initiating Application. If a case is already running, use an Application in a Proceeding. The FCFCOA's urgent application page says to attach:

• an affidavit with the facts you rely on
• the latest family violence order, if there is one
• a Notice of Child Abuse, Family Violence or Risk
• a cover letter that explains why the matter is urgent

In extreme cases the court can make orders ex parte, which means without notice to the other party. The court runs an out-of-hours service for emergencies, such as a risk that a child will leave the country before the next working day.

If a child isn't returned, a recovery order directs police to find and return the child. A location order can require agencies to share where the child may be.

Family violence and safety

The Act defines family violence as violent, threatening or other behaviour that coerces or controls a family member, or makes them fearful (section 4AB). Examples include assault, stalking, repeated derogatory taunts and intentionally injuring an animal.

Since 10 June 2025, the examples spell out economic or financial abuse in more detail, such as unreasonably withholding money a child needs. A child is exposed to family violence if they see, hear or otherwise experience its effects.

Safety is the first matter listed in section 60CC. The court must also try to keep orders consistent with any family violence order and avoid an unacceptable risk of family violence (section 60CG). If a parenting order conflicts with a state or territory family violence order, the FCFCOA says the family violence order is generally invalid to that extent. A state court making a later family violence order can also change how a parenting order works. Check the dates of both, and get legal advice before arranging a handover.

Write down what happens in plain, dated facts, and our guide to factual co-parenting incident reports shows the format.

Moving away with your child

Relocation means moving a child to another town, state or country. A move that makes time with a parent much harder is a major long-term issue under section 4. The court decides it under the same best-interests test.

The FCFCOA suggests talking to the other parent first and formalising any agreement. Many parents trade school-term time for longer stays in the holidays.

If you can't agree, either parent can apply. The moving parent can ask for an order allowing the move. The other parent can ask for limits, such as a home within 30 kilometres of school.

Moving without consent or an order carries real risk, because the court may require you to return with the child until the case ends. If an order is in place and the move breaks it, that's a contravention.

Travelling overseas, passports and the Airport Watchlist

Special rules apply once a parenting order is in force or an application is pending. Taking a child out of Australia then needs written consent or a court order (sections 65Y and 65Z). The penalty is up to three years' imprisonment, and keeping a child overseas beyond what was agreed is also an offence.

The consent must be authenticated, which means written and signed in front of someone who can witness statutory declarations. That witness must check your identity.

For an Australian passport, everyone with parental responsibility normally gives written consent. If one parent refuses, you can ask the Department of Foreign Affairs and Trade to consider special circumstances. A Child Alert Request flags any new passport application.

If you fear the child will be taken overseas, the court can restrain the removal and order passports handed in (section 67ZD). It can also ask the Australian Federal Police (AFP) to place the child on the Family Law Watchlist, often called the Airport Watchlist. The AFP's watchlist page says you need an order or filed application that limits travel. It prefers orders that last up to three years.

Changing a parenting order

A parenting order stays in force until it's formally changed, and the FCFCOA says informal talks don't change it. There are two formal ways to change one, and one informal way:

• consent orders that vary the old orders
• an application to the court, if the other party won't agree
• a later parenting plan both parents sign, which can change how the order operates but can't be enforced like one (section 64D)

A contested change to final orders must pass section 65DAAA. The court considers whether circumstances have significantly changed since the order, and must be satisfied that reconsidering it is in the child's best interests. It can look at the reasons for the first order, any new material, the likely outcome and any benefit or harm to the child.

A new application follows the same steps as a first one, including FDR. Our guide to changing parenting orders explains Rice and Asplund and the records that show a change.

When the other parent breaks an order

Everyone bound by a parenting order must follow it, and the FCFCOA says that means taking positive steps. For example, you must encourage the child to spend the ordered time with the other parent.

If an order is broken, you can file a contravention application. The court asks whether there was a contravention, and then whether there was a reasonable excuse. The Act names two excuses: not understanding the order, and protecting someone's health or safety for no longer than needed.

The court can order make-up time, change the order or send a parent to a parenting program. Where there was no reasonable excuse, it can also order:

• a bond
• compensation for reasonable expenses
• a fine of up to 60 penalty units
• imprisonment, as a last resort

Note each missed or late handover on the day, and see our guides to documenting custody order violations and logging denied or withheld time.

Child support is separate from parenting orders and is handled by Services Australia. If payments stop, our guide to missed child support under Private Collect explains what to do.

Western Australia and other regional differences

Western Australia has its own court, the Family Court of Western Australia, which hears parenting cases for married and unmarried parents. For children of married parents it applies the Family Law Act 1975. For children whose parents never married, it applies the Family Court Act 1997 (WA).

WA has copied the federal changes into its own Act through the Family Court Amendment (Commonwealth Reforms) Act 2024, from 10 February 2025. Section 66C of the WA Act now mirrors section 60CC, and section 89AAA mirrors the test for reopening final orders.

Some rules differ by location elsewhere too. If your child is in someone's care under a state or territory child welfare law, the FCFCOA generally can't make a parenting order without the welfare authority's written consent (section 69ZK). Recording laws also differ between states, so read our guide to call logs and recordings in Australian parenting cases before you record a call.

What to keep a record of

Courts decide on facts they can check, and a short note made on the day is easier to follow than memory a year later.

• Time with each parent: planned and actual, including cancellations, which a parenting-time log template keeps in one place.
• Handovers: the time, the place and any delay.
• Major long-term issues: who asked, who answered and what you agreed.
• Safety concerns: what you saw or heard, with any police or medical reference.

Write what happened without guessing at motives, and record what goes well too. Casewell keeps these entries dated, private and encrypted on your phone, then exports a PDF timeline for your lawyer or FDR practitioner. Our guide to what counts as evidence in an Australian parenting case explains how records become evidence.

CHILD'S NAME:
DESTINATION COUNTRY AND CITY:
DEPARTURE DATE AND FLIGHT:
RETURN DATE AND FLIGHT:
WHERE WE WILL STAY:
CONTACT NUMBER WHILE AWAY:
CALLS OR VIDEO WITH YOU WHILE AWAY:
TIME THIS AFFECTS UNDER THE CURRENT ORDER:
PROPOSED MAKE-UP TIME:
PLEASE REPLY BY: