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Key Summary
| • Australian law has no such thing as "custody". Courts make parenting orders about who a child lives with, spends time with, and who makes the big decisions. • Where no parenting orders exist, both parents already have full legal say over their child. Neither one needs a court order to have the child with them. • If a child has been taken or kept away, a recovery order is available even when no parenting orders are in place. |
• The presumption of equal shared parental responsibility was repealed on 6 May 2024. There is no longer any starting assumption that decisions get shared equally. • You generally can't file in court until you've tried mediation and hold a section 60I certificate, unless the court grants an exemption. • |
Bottom line: Taking a child without agreement rarely helps and often hurts your case. Get advice before you act, not after. Our family law team for dads can tell you where you stand in one conversation.
Father Custody Rights: The Short Answer
If there are no parenting orders, a father is not breaking any law by having his child with him. Neither is a mother. Under section 61C of the Family Law Act 1975, each parent holds full parental responsibility until a court says otherwise. No default rule hands the child to the mother. No rule makes the father ask first.
That’s the legal position. It is not the same as saying it’s a good idea.
What we commonly see: a parent reads that sentence, keeps the child, and assumes the law is on their side. Then the other parent files. The first thing the court asks is why the child’s routine was upset without warning. How you behaved before a case started is evidence about your judgement as a parent. We’ve watched a legally allowed decision cost someone the outcome they wanted.
Once parenting orders exist, the position tightens a lot. Both parents have to follow them, and breaking them carries real penalties.
Parental Responsibility After the 2024 Changes
What the term actually means
Parental responsibility covers the major long-term calls in a child’s life. School, serious healthcare, religion, name, and where they live if a move would make time with the other parent hard. It’s separate from who the child lives with day to day. A parent can hold it in full and still see their child only on weekends.
Why “equal shared parental responsibility” no longer applies
This is where most articles on the internet are now wrong, including the version of this page we published before.
Until 6 May 2024, section 61DA made the court start from a presumption of equal shared parental responsibility. The Family Law Amendment Act 2023 repealed that section outright. It also repealed section 65DAA, which had forced the court to weigh up equal or substantial time whenever that presumption applied.
Here’s what replaced it:
- Section 61C gives each parent full say over their child unless a court orders otherwise. The Act now spells out that this is not a presumption for a court to apply.
- Section 61CA encourages parents to consult each other on major long-term issues, if it is safe to do so. Encouragement, not duty.
- Section 61DAA creates a real duty to consult and genuinely try to agree, but only where a court has ordered joint decision-making.
So the old line that “both parents must consult each other and jointly make major decisions” is no longer right. Unless a court has ordered joint decision-making, there is no duty to consult at all.
The mistake we see most often: a father assumes the repeal means he’s lost ground. Or a mother assumes it hands her sole say. Neither is right. Dropping the presumption gave power to neither parent. It stopped the court starting anywhere except the child in front of it.
There’s also no rule that children spend equal time with each parent. There never was one, and there’s even less of one now.
How a Court Decides Who a Child Lives With
The best interests factors in section 60CC
The child’s best interests come ahead of everything else. What changed in 2024 is how that gets judged. The old two-tier structure, with “primary” and “additional” considerations and extra weight on safety, is gone. So is the old wording about a child’s right to a meaningful relationship with both parents.
Section 60CC now sets out six factors, and a court need not rank one above another:
- what arrangements would promote the safety of the child and each person who cares for them, including safety from family violence, abuse, neglect or other harm
- any history of family violence, abuse or neglect involving the child or a carer, and any family violence order
- the child’s developmental, psychological, emotional and cultural needs
- each proposed carer’s capacity to meet those needs
- the benefit to the child of a relationship with their parents and others who matter to them, where it is safe
- anything else relevant to the child’s situation
- the child’s views, which a court must weigh where the child has voiced them
For Aboriginal and Torres Strait Islander children, section 60CC(3) adds further factors about the child’s right to enjoy their culture and keep connection to family, community, country and language.
What this looks like in practice
Safety sits first in the list for a reason, and in our experience it does most of the heavy lifting. After that, a court looks closely at who has been doing the caring. Who does the school run, books the dentist, knows which foods the child won’t touch. That history counts because stability counts, especially for young children.
Questions our lawyers ask first: Who has done the day-to-day care for the past twelve months, and can you prove it? Is there anything in either home that puts the child at risk? Can you house and care for this child on your own income? The answers usually show the likely outcome well before anyone files.
When a Father Can Change Where the Child Lives
Family violence, abuse or risk of harm
Where a child is at risk in the mother’s care, a court can and does change where that child lives. Evidence carries this, not claims. Police records, medical reports, family violence orders, reports to the state child protection body, school notes. We move fast where there’s a genuine risk, including urgent cases run without notice to the other parent.
This runs both ways. A mother can seek the same orders against a father, and the Act is gender-neutral throughout.
Urgent situations and interim orders
Where a parent can’t care for the child because of illness, a hospital stay, incapacity or substance misuse, the other parent can ask for interim parenting orders. These hold the position until a court can look at the matter properly. Urgency is also one of the grounds for skipping mediation and filing straight away.
Reaching agreement without a court fight
Most parents never see a judge, and court orders aren’t the only route. A parenting plan under section 63C is a written, signed and dated agreement between parents. It isn’t binding, but a court must weigh the most recent one, and it can override parts of an earlier order. Consent orders turn an agreement into a binding court order without a hearing. Both beat a fight on cost and damage.
The Steps You Have to Take Before Filing
Mediation and the section 60I certificate
The old version of this article said the first step was applying to court. That was wrong, and following it would get your case knocked back.
Under section 60I(7), a court must not accept a parenting application for filing unless you file a section 60I certificate from an accredited family dispute resolution practitioner, or the court grants an exemption. The grounds in section 60I(9) cover child abuse or a risk of it, family violence or a risk of it, urgency, incapacity, and a serious breach of orders in the past twelve months.
One change catches people out. Since 10 June 2025, an exemption is no longer automatic. A court grants it under sections 60I(8A) and (8B), and you’ll need to file an affidavit setting out why you qualify.
The evidence that carries weight
Not all evidence lands the same way. What helps most is proof of steady, ordinary involvement in your child’s life. School and medical records with your name on them. A record of time spent together. Proof you’ve paid what a parent pays. Stable housing that suits the child. Outside voices from teachers, GPs or counsellors carry more weight than anything a parent says about themselves.
What people often misunderstand: a thick file of complaints about the other parent is not the same as evidence you’re a capable one. Judges see a lot of the first kind. The second kind is what actually persuades them.
If a Child Has Already Been Taken
Recovery orders
When a child has been taken or is being withheld, the remedy is a recovery order. Section 67Q defines it, and a court’s power to make one sits in section 67U. A recovery order can require the child’s return, let the Australian Federal Police find and recover the child, and stop that person taking the child again.
The part that matters most: under section 67T you don’t need existing parenting orders to apply. The section reaches any person concerned with the child’s care, welfare or development, which covers a parent with no orders in place. If that’s you, the recovery application goes in alongside an application for parenting orders. Time counts here, so get advice the same week.
Stopping a child leaving Australia
The old version of this page described a court holding a child’s passport. That’s one tool, and not the main one.
Where a parenting order is in force or a case is on foot, taking or keeping a child outside Australia without the needed consent is a crime under sections 65Y, 65YA, 65Z and 65ZAA. The penalty is up to three years in prison. To stop a departure actually happening, the tool is the Australian Federal Police Family Law Watchlist, backed by an order restraining travel. A watchlist request needs a court order or a filed application that both restrains overseas travel and expressly asks for the child to be listed.
Section 67ZD also lets a court order travel documents be handed over, including foreign passports, where there’s a threat of removal. A Child Alert with the Australian Passport Office flags any new passport application, though it won’t cancel one that exists. If a child has already gone, the Hague Convention is the route to seek their return, and only for countries party to it. We cover this in our guide to child abduction laws in Australia.
How a Parent Can Restrict the Other Parent’s Time
Family law injunctions and state protection orders
These are two different things, and mixing them up costs people time.
A family law injunction under section 68B or section 114 is made by the Federal Circuit and Family Court of Australia. It can protect a child or a parent, keep someone away from a home, workplace or school, or stop a child being taken out of Australia.
A state protection order is a different animal. An ADVO in New South Wales, an FVIO in Victoria, a DVO in Queensland. Police can apply for one on your behalf, a Local or Magistrates Court issues it, and breaking it is a crime police will prosecute. For personal safety it’s usually the faster, better-enforced option. Since 25 November 2017 these orders work nationwide.
The two systems talk to each other. Under section 68R, a state court making or changing a family violence order can also vary, suspend or discharge a parenting order, so far as it lets a child spend time with someone. That’s how a clash between a local court order and family law orders gets sorted.
When a parenting order is breached
Division 13A of the Act was repealed and rewritten on 6 May 2024. Where a breach is proven without reasonable excuse, section 70NBF gives a court a wider range of responses than most people expect. Make-up time for the parent who missed out. A bond. Money to cover wasted costs such as flights. A fine of up to 60 penalty units. Prison for up to twelve months, though that’s kept for cases where nothing else would do, and a court has to give reasons.
A court can also change or suspend the order itself, and send a parent to a post-separation parenting program. “Reasonable excuse” is now an open list, which gives a parent who withheld a child for genuine safety reasons more room to explain.
Keep records of every breach. Dates, times, messages, missed changeovers. These cases are treated as quasi-criminal and the filing rules are strict, so they need preparing properly.
How Unified Lawyers Can Help
Custody disputes are rarely about the law alone, and we don’t run them that way. Our experienced family law specialists give tailored legal advice on who decides and where a child lives, handle recovery orders and urgent cases, prepare parenting plans and consent orders, and represent parents in mediation and in court.
We work privately, efficiently and strategically, and we bring in the right specialists when a matter needs them, whether that’s a family consultant, a mediator or a child psychologist.
The pattern we see: the parents who do best are the ones who called before they acted, not after. A conversation costs an hour. Undoing a rushed decision can take a year.
Get in touch with us today on 1800 431 519 or book a free consultation. We’ll guide you through every step, so you can get on with being a parent.
CLICK HERE: GET A FREE CONSULTATION TODAY!
Frequently Asked Questions
Can a father take a child away from the mother without a court order?
If there are no parenting orders, yes. Both parents have full legal say under section 61C, so neither needs the other’s permission. But doing it without agreement gets looked at closely if the matter reaches court, and it often damages the case of the parent who did it.
Does the mother automatically get the child in Australia?
No. There’s no rule favouring mothers, and the Family Law Act is gender-neutral. A court decides on the child’s best interests under section 60CC, weighing safety, each parent’s capacity, the child’s needs and views, and the benefit of a relationship with both parents where that’s safe.
Do parents still get equal shared parental responsibility?
Not as a presumption. Section 61DA was repealed on 6 May 2024. Each parent has full legal say under section 61C unless a court orders otherwise, and a duty to decide jointly arises only where a court orders joint decision-making.
What can I do if my ex won't return our child?
Apply for a recovery order. Under section 67T you can apply even without existing parenting orders, and a court can direct the child’s return and send the AFP to recover them. Act quickly, because delay makes the situation harder to unwind.
Do I have to go to mediation before applying to court?
Usually, yes. Section 60I requires a certificate from an accredited practitioner before a court will accept your case. Exemptions exist for family violence, child abuse, urgency and incapacity. Since 10 June 2025 the court must grant the exemption, and you’ll need an affidavit to support it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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