Child Custody and Parenting Orders in Australia: A Plain-English 2026 Guide

Australian family law has not used the word "custody" for many years, even though most people still say it. The Family Law Act 1975 (Cth) talks instead about parenting orders, and breaks the question down into practical pieces: who a child lives with, who a child spends time with, who a child communicates with, and how the big decisions about that child get made.

That last piece is "parental responsibility", which covers major long-term issues like a child's education, major health care, religion and culture, name, and where they live if it makes time with a parent significantly harder. It is separate from day-to-day care. Two parents can share parental responsibility for major decisions while a child lives mainly with one of them.

Getting the language right matters because it changes the question you are actually asking. The court is not handing one parent a prize called "custody". It is deciding a set of arrangements that, taken together, are in the child's best interests.

The most important change in recent years took effect on 6 May 2024, when the Family Law Amendment Act 2023 commenced. It repealed the long-standing presumption of "equal shared parental responsibility" and the linked pathway in the old section 65DAA that required courts to consider equal time, then substantial and significant time, with each parent.

In plain terms: there is no longer any legal starting point that parents should share decision-making 50/50, and no automatic assumption that a child should split their time equally between two homes. Some families will still land on shared care or equal time, but only because it suits that particular child, not because the law pushes the court there.

Decisions about major long-term issues are now made by whoever the parenting order says, and the court works out case by case whether the parents can realistically make those decisions jointly. Where an order says parents share decision-making, they are expected to genuinely consult and make a genuine effort to reach a joint decision.

Existing orders made before 6 May 2024 still stand. If you already have parenting orders, you should keep following them. The new rules apply to new cases and to cases that had not reached final hearing when the changes commenced.

Since 6 May 2024 the court determines a child's best interests using a streamlined list of six general considerations in section 60CC of the Family Law Act. No single factor is automatically given more weight than the others, although safety is listed first and runs through the whole assessment.

The six general considerations are:

• Safety: the safety of the child and of anyone who cares for the child, including any history of family violence and any family violence orders.
• The child's views: what the child wants, given weight according to their age and maturity (there is no fixed "magic age").
• The child's needs: their developmental, psychological, emotional and cultural needs.
• Each carer's capacity: how well each proposed carer can meet those needs.
• Relationships: the benefit to the child of a relationship with each parent, and with other significant people such as siblings and grandparents, where it is safe.
• Anything else relevant to the child's particular circumstances.

There is also an additional, standalone consideration for Aboriginal and Torres Strait Islander children, which commenced on 21 August 2024. The court must consider the child's right to enjoy their culture, the support they will get to connect with it, and the likely effect of any proposed order on that right. The Act's definitions of "relative" and "member of the family" were also widened to recognise kinship relationships.

Most separated parents never need a judge to decide. If you can agree, you have two main ways to record the arrangement, and they are very different in legal weight.

A parenting plan is a written agreement, signed and dated by both parents. It can cover living arrangements, time, communication, decision-making, schooling and more, and you can change it any time you both agree in writing. The catch: a parenting plan is not legally enforceable. If one parent stops following it, the court cannot directly enforce the plan itself.

Consent orders turn an agreement into legally binding court orders without anyone having to attend a hearing. You file an Application for Consent Orders, a Judicial Registrar checks the proposed parenting arrangements are in the child's best interests, and if approved they become enforceable orders. The filing fee is $205 from 1 July 2025. This is usually the cheaper, lower-conflict path to legally binding certainty.

As a rough rule: low-conflict, communicative families often do fine with a parenting plan, while families wanting certainty, or where there has been non-compliance or higher risk, are better served by consent orders.

Before you can file for parenting orders in court, you generally must make a genuine effort to resolve things through Family Dispute Resolution (FDR), a form of mediation run by an accredited practitioner. You then file a section 60I certificate confirming you attempted FDR. Without it, and without an exemption, the court will reject your application.

FDR is often free or low-cost. Family Relationship Centres are government-funded and provide information and individual sessions free of charge, with joint parenting mediation sessions free for one hour per couple. You can find services through Family Relationships Online or the national advice line on 1800 050 321.

Exemptions from the FDR/60I requirement exist, including where there has been family violence or child abuse (or a risk of it), where the matter is urgent, where a party can't participate effectively, or where there has been a recent breach of an existing order. If an exemption applies you can file without a certificate, but you must still file a Notice of child abuse, family violence or risk, which is mandatory in every parenting case.

If agreement is impossible, you file an Initiating Application seeking parenting orders. From 1 July 2025 the filing fee is $435 for final orders, with an extra $150 if you also seek interim (interlocutory) orders. After filing, parties complete an online safety risk screen (Family DOORS Triage, part of the court's Lighthouse Project) so risk can be identified and managed early.

It is not only parents who can ask for parenting orders. Under section 65C, an application can be made by either or both parents, the child, a grandparent, or any other person concerned with the care, welfare or development of the child. Non-parents other than grandparents may first need to show they are genuinely concerned with the child's care, welfare or development.

The child's own views are one of the six section 60CC factors, weighted by age and maturity. There is no fixed age at which a child gets to choose. The court looks at how strongly and how long the views have been held, the circumstances in which they were expressed, and whether the child may have been pressured.

In some cases, often the more complex or high-conflict ones, the court appoints an Independent Children's Lawyer (ICL). An ICL does not take instructions from the child like a normal lawyer. They form their own independent view of what is in the child's best interests. Since the 2024 reforms, an ICL is generally required to meet with the child and give them a chance to express their views, with limited exceptions such as very young children (for example, under 5) or where it would not be in the child's interests.

Once parenting orders are in place, both parents must follow them. If a parent breaks an order without a reasonable excuse, the other parent can file a contravention application asking the court to enforce it.

"Reasonable excuse" is defined in section 70NAE of the Family Law Act. It can include not understanding the obligation, or reasonably believing the breach was necessary to protect the health or safety of a person (including the child), provided the breach lasted no longer than reasonably necessary for that protection.

If a contravention is proven without reasonable excuse, the court has a range of responses. These include ordering make-up time, varying the existing orders, requiring the parent to attend a post-separation parenting program, requiring a bond, ordering costs, imposing a fine, or, in the most serious cases, imprisonment. Imprisonment is rare and reserved for the gravest or most persistent breaches.

Importantly, a contravention application enforces existing orders. It is not the way to change orders simply because circumstances have shifted. Changing final orders generally requires a significant change in circumstances, a long-standing principle from the case Rice v Asplund.

Western Australia runs its own system through the Family Court of Western Australia under the Family Court Act 1997 (WA). It applies the same federal Family Law Act principles to married couples but also handles de facto matters under state law. WA de facto couples get broadly the same parenting and property frameworks as everyone else, but the legal machinery is distinct. There is no time limit for seeking parenting orders for a child under 18, while de facto property claims generally must start within 2 years of separation.

Court filing fees are set by federal regulation, indexed, and change regularly, so always confirm the current figure on the court's fees page before you file. As at the 1 July 2025 schedule: Application for Consent Orders $205, Initiating Application (final orders) $435, plus $150 if interim orders are also sought. Fee reductions or full exemptions are available for people in financial hardship or holding an eligible concession card.

These fees are only the court's charge. The bigger cost in a contested matter is usually legal representation, which varies widely. Free and low-cost help is available through Legal Aid in each state and territory, community legal centres, and Family Relationship Centres for mediation. If money is a barrier, it is worth checking eligibility for Legal Aid before assuming you cannot afford advice.

Because fees, thresholds and indexed amounts change every year, treat the dollar figures here as a 2026 snapshot and confirm the current numbers at the official source before relying on them.