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Children and parenting arrangements
Arrangements for children after separation should be workable, safe and built around the child. Elmy Legal helps parents and carers reach agreements that last, and acts in court when agreement is not possible.
What the law looks at
Every parenting decision under the Family Law Act turns on one question, which is what arrangement is in the best interests of the child. Terms like custody and access are no longer used. The law talks about who a child lives with, the time a child spends with each parent and who makes the major long term decisions.
There is no rule that children spend equal time with each parent. Since May 2024 there is also no presumption of equal shared parental responsibility. Each arrangement is decided on what is best for the particular child.
In working that out, a court considers matters such as
- the safety of the child and of the people who care for them
- the views the child has expressed
- the child’s developmental, psychological, emotional and cultural needs
- the capacity of each parent or carer to meet those needs
- the benefit to the child of a relationship with their parents and other significant people
- for Aboriginal and Torres Strait Islander children, their right to enjoy their culture and their connection to family, community, culture and country
Three ways to record an arrangement
- A parenting plan is a written agreement that is signed and dated. It is flexible and inexpensive, but it cannot be enforced by a court.
- Consent orders are an agreement approved by the court. They are binding and enforceable, and in most cases nobody needs to attend court.
- Court orders are made by a judge after a hearing when parents cannot agree.
Before going to court
In most cases you must make a genuine attempt at family dispute resolution and obtain a certificate before you can file a parenting application. There are exceptions, including urgent matters and cases involving family violence or a risk to a child.
Matters we act in
- Parenting plans and consent orders
- Interim and final parenting hearings
- Recovery orders when a child is not returned
- Relocation, including moves interstate
- Contravention and enforcement of existing orders
- Applications to change final orders
- Applications by grandparents and other carers
Our Principal Solicitor also accepts appointments as an Independent Children’s Lawyer, which gives us a working understanding of how these cases look from the child’s side.
This page is general information and is not legal advice. Please get advice about your own circumstances before acting.
Children and parenting arrangements, answered.
At what age can a child decide who they live with?
There is no set age. A child’s views are one of the matters a court considers, and the weight given to them depends on the child’s age, maturity and understanding, and on why they hold those views.
The other parent is not following the orders. What can I do?
Keep a clear record of what has happened and get advice promptly. Options range from a letter or mediation through to a contravention application. The right step depends on how serious and how frequent the breaches are.
Can I move interstate with the children?
If the move would make it significantly harder for the children to spend time with the other parent, you need that parent’s agreement or a court order first. Get advice before you make plans, because moving without either can lead to an order that the children be returned.
Ready to talk about your situation?
If you or your children are in immediate danger, call 000. For confidential family violence support at any hour, call 1800RESPECT on 1800 737 732.