Family law
Parenting arrangements and orders
Where the children live, how they spend time with each parent, and who makes the big decisions. Most families resolve this without a hearing, and the ones that resolve well are usually the ones that got advice early.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Bella Vista, appearing in the Federal Circuit and Family Court at Parramatta.
Custody and access are not the language the law uses
Australia stopped using those words decades ago, and the change was not cosmetic. Nobody is awarded custody of a child and nobody has access rights, because children are not property to be divided and the focus is on arrangements that work for them rather than on parental entitlements.
| What people say | What the law says | What it actually means |
|---|---|---|
| Custody | Who the child lives with | Where the child’s day to day home is |
| Access, or visitation | Who the child spends time with | Time with the other parent and with other significant people |
| Legal custody | Parental responsibility | Who makes the major long term decisions |
| Full custody | Sole parental responsibility, or the child living with one parent | Two separate things that are often confused with each other |
The distinction that matters most is the last one. Where a child lives and who decides about their schooling, health and religion are separate questions with separate answers. A child can live mainly with one parent while both continue to make the big decisions together.
How the court decides
There is one test: what is in the best interests of the child. The framework for applying it was rewritten in 2024, and the changes were significant enough that advice given, or content written, before then may no longer be right.
- Safety comes first. The first thing the court must consider is what arrangements promote the safety of the child and of each person who cares for them, including safety from family violence, abuse and neglect. Any history of violence and any family violence order is part of that.
- The child’s views. Considered in light of their age and maturity. There is no age at which a child gets to decide, and no age at which their view is ignored.
- Their needs. Developmental, psychological, emotional and cultural.
- Each parent’s capacity. The ability and willingness of each person seeking to care for the child to meet those needs.
- The benefit of relationships. The benefit to the child of a relationship with their parents, and with other people who matter to them, where it is safe to have one.
- Anything else relevant to the particular child and family.
- For Aboriginal and Torres Strait Islander children, there is an additional consideration about the right to enjoy their culture and the support they need to do so.
There is no longer a presumption of equal shared parental responsibility, and there never was a presumption of equal time. The presumption was removed in the 2024 reforms, along with the pathway that took the court from shared responsibility to considering equal or substantial time. The starting point is not week about, it is not fifty fifty, and it is not an entitlement either parent holds. It is whatever is in the best interests of that child. Anyone telling you that you are automatically entitled to half the time is working from a version of the law that no longer applies.
Parental responsibility and major decisions
Parental responsibility is about the significant, long term decisions in a child’s life, not the day to day ones. Whoever the child is with makes the ordinary decisions about that day.
Major long term issues include education, health, religious and cultural upbringing, a change of name, and a change in living arrangements that would make it significantly harder for the child to spend time with the other parent.
Where an order provides for joint decision-making, the parents must genuinely consult each other and make a real effort to reach agreement on those issues. Where one parent has sole parental responsibility, they can decide alone, though they will usually still be expected to keep the other informed. Which arrangement fits depends on whether the parents can communicate, not on who is more deserving.
Three ways to set the arrangements
| Informal agreement | Parenting plan | Consent orders | |
|---|---|---|---|
| What it is | A verbal or text-message understanding | A written agreement, signed and dated by both parents | Your agreed terms made into orders by the court |
| Court involvement | None | None | Filed and considered by a registrar. Neither parent attends |
| Enforceable | No | No | Yes |
| Flexibility | Complete | High. Can be changed whenever both parents agree | Changed by agreement in writing, or by further order |
| Best for | Parents who communicate well and have no history of difficulty | Parents who agree and want a clear written record | Where certainty matters, or where trust has broken down |
A trap worth knowing about parenting plans. A parenting plan made after a parenting order can change that order, unless the order says otherwise. Parents sometimes sign something informal months later without realising it has displaced the orders they went to considerable trouble to obtain. If you have orders and someone asks you to sign a plan, get advice first.
Consent orders are the usual answer where parents agree. They cost a fraction of litigation, neither of you attends court, and you end up with something enforceable. Where you broadly agree already, this can often be done quickly.
Mediation comes before court
Before applying for parenting orders you generally have to attempt family dispute resolution and obtain a certificate from an accredited practitioner. It is not a formality. Many families resolve the whole thing there, and even where they do not, it usually narrows what is genuinely in dispute.
You do not need a certificate in every case. The requirement does not apply where the matter is urgent, where there has been family violence or child abuse or a risk of either, where a party cannot participate effectively, or where an order has been contravened in circumstances showing a serious disregard for it. If any of that applies to you, say so at the first appointment, because it changes the path entirely.
Child support is administered separately by Services Australia and is not decided by parenting orders, though the care arrangements affect the assessment.
What a workable arrangement covers
Most disputes after orders are made are not about the big principle. They are about something nobody thought to write down. These are the things worth dealing with while everyone is still talking.
- Where the children live, and the pattern of time during school terms
- School holidays, including how the long break is divided and how much notice is needed
- Christmas, Easter, birthdays, Mother’s Day and Father’s Day, and how these interact with the ordinary pattern
- Changeover: where, when, and who does the travel. Somewhere neutral where the relationship is strained
- Communication between the children and the other parent when they are not together, including how often and by what means
- Communication between the parents, and how. Many families do far better with a written channel only
- Schooling, medical treatment, and how each parent gets information from the school and doctors
- Travel, including interstate and overseas, passports, and notice requirements
- Introducing new partners, and time with grandparents and extended family
- What happens when someone is sick, or work changes, and how a swap is proposed
When it is not straightforward
Family violence or risk
Safety is the first consideration and the mediation requirement does not apply. Arrangements can be structured around supervised time, neutral changeover or no direct contact between the parents. More on family violence.
The children are being withheld
Where a parent stops the children coming, or does not return them, an application can be brought quickly, and urgently where the circumstances warrant it. Acting promptly matters, because arrangements that continue tend to become the status quo.
Relocation
A parent wanting to move away with the children, whether interstate or overseas, needs the other parent’s agreement or a court order. Moving first and asking later is the single most damaging thing a parent can do in these matters.
Overseas travel
Where orders are in place, taking a child out of Australia without consent or an order can be a criminal offence. Passports generally require both parents’ consent, and there are steps available where one parent will not sign, or where there is a risk a child will not be returned.
An independent children’s lawyer
In difficult cases the court may appoint a lawyer to represent the children’s interests independently of both parents. They are not the child’s advocate but form an independent view of what is best for them.
Orders being breached
Where orders are not being followed, a contravention application can be brought. The court can vary the orders, order make-up time, impose costs and, at the serious end, impose penalties. Keep a record of what happens and when.
Grandparents and other people concerned with a child’s care, welfare and development can also apply for parenting orders. It is not limited to parents.
Changing orders later
Children grow, work changes, people move, and arrangements that suited a four year old rarely suit a fourteen year old. Orders can be changed by agreement at any time, either by consent orders or, in some cases, a written parenting plan.
Where you do not agree, the court will not simply rehear the case. You have to show a significant change in circumstances since the last orders were made, sufficient to justify reopening it. That threshold exists to protect children from being litigated over repeatedly, and it means the time to get the orders right is the first time.
Common questions
Do I automatically get equal time?
No. There is no presumption of equal time and there never was, and the presumption of equal shared parental responsibility that used to lead the court towards considering it was removed in 2024. Equal time is one possible outcome among many, and it depends on the children, the distance between homes, work patterns and how well the parents communicate.
At what age can my child decide who they live with?
There is no such age. A child’s views are considered in light of their age and maturity, and they carry more weight as children get older, but no child is handed the decision. Nor should they be told they have it, which puts a burden on them that is not theirs to carry.
My ex will not let me see the children. What can I do?
If there are orders, that is a contravention and can be acted on. If there are no orders, you should get some. Either way, act promptly, because an arrangement that continues unchallenged for months starts to look like the status quo and is harder to shift. Do not respond by withholding child support or by taking the children yourself.
Do we have to go to court?
Most families do not. Mediation resolves a great many matters, and where you reach agreement, consent orders make it binding without either of you attending. Court is for cases that cannot be resolved any other way, or where safety requires it.
Can my ex move away with the children?
Not unilaterally, where it would significantly affect the children’s time with you. That is a major long term issue requiring agreement or a court order. If you have been told a move is planned, get advice immediately rather than after they have gone.
Is child support decided at the same time?
No. Child support is administered by Services Australia under a separate formula, and parenting orders do not set it. The care arrangements do feed into the assessment, so the two are connected without being the same process.
What if we agree on everything?
Then this is straightforward and inexpensive. We draft consent orders reflecting what you have agreed, file them, and the court makes the orders without either of you attending. It is worth doing even when you are on good terms, because it removes the argument in two years’ time when circumstances change.
Should I keep a diary?
Yes. A dated record of changeovers, cancellations, communications and anything of concern is far more useful than trying to reconstruct it later. Keep it factual rather than editorial, because it may end up being read by a judge.
Sort the arrangements out properly
We keep these matters calm, practical and focused on the children, and we push hard for agreement where it is safe and sensible. Where it is not, we act quickly. Come and talk it through before you make decisions that are difficult to undo.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Monday to Friday 9am to 5pm, and contactable outside those hours.