Decisions about children after separation are the hardest part of family law, and they are also the part the Court takes most seriously. The Family Law Act has one organising principle here — the best interests of the child — and every assessment, order, and practical arrangement flows from it. My role is to help you reach an arrangement that meets that test while still being practical for the way you and your former partner actually live.
The legal framework
Since the 2024 amendments to the Family Law Act, the previous presumption of 'equal shared parental responsibility' has been removed. The Court now focuses squarely on what is in the best interests of the child, with two primary considerations: the benefit of the child having a meaningful relationship with both parents, and the need to protect the child from harm. Where those considerations conflict, the need to protect from harm prevails.
Practically, that means the focus has shifted away from arithmetic ('who has the kids how many nights') towards arrangements that genuinely work for the child — their schooling, their friendships, their relationships with extended family, and their safety.
Parenting plan vs parenting orders
A parenting plan is a written agreement signed by both parents. It is flexible and easy to vary but is not directly enforceable in court. Parenting orders are made by the FCFCA — either by consent or after a contested hearing — and are legally binding. Breach of a parenting order without reasonable excuse can result in serious consequences, including make-up time, fines, bonds and in extreme cases imprisonment.
If your relationship with your former partner is cooperative, a parenting plan is often enough. If it is high-conflict or you need certainty for things like passports, school enrolment or international travel, parenting orders are usually the better option.
Family dispute resolution (FDR) — what it is and when you can skip it
Before you can file a parenting application in the FCFCA, you must usually attempt family dispute resolution (FDR) and obtain a section 60I certificate from an accredited FDR practitioner. This applies even in matters where you are confident the other parent will not agree. There are exceptions — most importantly where there has been family violence or a genuine urgency — and we can advise on whether an exception applies to your matter.
FDR is not a waste of time even when you think it is hopeless. Even partial agreements narrow the issues that need to go to court, which directly reduces costs.
Common parenting issues we handle
Parenting matters cover a huge spectrum: working out the regular week-on/week-off or other rotation, school holiday and Christmas arrangements, schooling decisions, religious upbringing (especially relevant in Jewish, Muslim and mixed-faith families), interstate or international relocation, and dealing with new partners, step-parents and grandparents. I have advised on each of these, including the specific complications that arise where one parent wishes to maintain a religious schedule the other parent does not observe.
How I handle a children's issues matter
- 1Initial conversation — what is the current arrangement and what are you trying to achieve
- 2Where appropriate, family dispute resolution with an accredited FDR practitioner
- 3Drafting a parenting plan or consent orders that reflect the agreement
- 4If agreement is not possible — preparing and running a parenting application in the FCFCA
- 5Where safety is a concern — urgent applications, including alongside intervention orders
Frequently asked questions
Do mothers automatically get custody in Australia?
No. Australian family law is gender-neutral. The Court does not start from a presumption favouring either parent. It focuses on the best interests of the child, including the benefit of a meaningful relationship with both parents and the need to protect from harm.
At what age can a child decide which parent to live with?
There is no fixed age in Australian law. The Court will give weight to a child's wishes as one of several factors, with more weight as the child gets older and more mature. A 15-year-old's preferences carry significant weight; a 6-year-old's preferences are considered alongside many other factors.
Do I need to attend mediation before going to court?
In most parenting matters yes — you need a section 60I certificate from an accredited family dispute resolution practitioner. Exceptions apply, particularly in cases involving family violence, child abuse, or urgent applications. I can advise whether an exception applies.
Can a parenting order be changed later?
Yes, but the Court applies a 'significant change in circumstances' test. You cannot simply revisit a parenting order because you have changed your mind. Genuine changes — relocation, a child's new medical or schooling needs, family violence, or one parent failing to comply — can justify variation.
Reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Last reviewed 2026-05-22.
This page is general legal information about children's issues in Victoria, Australia. It is not legal advice for your specific situation. For advice on your matter, book a free initial consultation.