This article is about the possibility of a father legally obtaining full care (previously known as sole custody) or majority care of a child after separation or divorce. We do not advocate for either parent to ‘take a child away’ from the other parent in any way, and strongly recommend seeking legal advice before making any changes to a child’s care schedule. In an emergency protection issue, please contact the police, and ensure the correct legal avenues are followed at all times.
If you are co-parenting on a shared care arrangement and feel that it would be best for your child or children to be in your care full-time, taking the right legal steps regarding your parenting arrangements (or child custody arrangements) is crucial.
Parenting time in Australia (child custody)
In Australia, parenting time is the amount of care each parent has with their child or children. Parenting arrangements can include sole, shared, or split care, depending on what’s best for the child.
Decision-making responsibility refers to the responsibility for making key decisions about a child’s upbringing, such as education and healthcare. Australian family law generally promotes equal shared parental responsibility, meaning both parents are involved in major decisions. Fathers are encouraged to seek legal advice to understand their rights and responsibilities.
Reasons for seeking full-time care (primary child custody) of a child
A father may seek full-time care due to relocation needs, the child’s preference, stability, school access or concerns about the mother’s parenting capacity. Serious issues like neglect, abuse or drug use can also be grounds. The court focuses on the child’s safety, welfare and overall development when deciding.
Ages and care history of the children involved
The age of the children and their history of care play a key role. Younger children may require more routine and stability, while older children’s views may carry more weight. Courts consider who has been the primary caregiver and the consistency of care provided by each parent over time.
Is it in the best interests of the child?
The court’s main priority is always the child’s best interests. This includes their safety, emotional wellbeing, meaningful relationships with both parents and protection from harm. A change in care must clearly benefit the child’s life and not simply reflect a parent’s preferences or personal convenience.
What are the current parenting arrangements?
The court will assess the effectiveness of existing parenting arrangements, such as shared care, visitation schedules, or informal agreements. If the child is thriving under current arrangements, significant changes may be less likely unless there’s evidence that the current situation is harmful or unsustainable. If there are parenting orders in place for a set care arrangement, it’s important to seek legal advice regarding any proposed changes.
Is it a short-term or long-term arrangement?
It matters whether the change is intended to be temporary or permanent. Short-term care changes, like for travel or emergencies, are usually easier to agree on. Long-term changes require strong justification and legal approval, especially if they involve moving the child away or disrupting their established routine.
Family dynamics and wishes of the mother
The mother’s views and her relationship with the children are important. If she objects to the change, the court will consider her reasons, parenting capacity and the potential impact on the child. Cooperative co-parenting is encouraged, but disagreements must be resolved in the child’s best interests.
Each parent’s parental rights
Both parents have equal parental responsibility unless a court decides otherwise. This means they have the right to make decisions about the child’s care, education, and health. Seeking full-time care doesn’t remove the other parent’s rights unless there’s a formal order limiting or changing those responsibilities. If parents can’t agree on matters such as a child’s education, the Australian Family Law Act requires that parents attend FDR or mediation prior to any further legal proceedings commencing.
Are there orders in place?
Existing parenting or protection orders will guide what can or cannot be done. If orders already allocate care or restrict contact (due to abuse, absence or addiction), a parent seeking full-time care must apply to vary those orders through the Family Court. An application to modify child custody arrangements must be supported by clear evidence and legal advice. If parents cannot reach an agreement, or they disagree on
Legal options
If a parent is incapacitated, abusive or battling serious addiction, the other parent can apply to the Family Court for full-time care. Legal options include seeking parenting orders, urgent recovery orders, or supervised contact arrangements. Legal advice is essential to address risks of harm to the child and protect their wellbeing.
In most cases, the court will consider primary custody if one parent is unable to meet their parental responsibility, or child abuse is occurring. They may recommend supervised visitation, order a parent to seek help for drug and alcohol abuse.
Drug and alcohol use in parenting matters
If there are concerns about a parent’s drug or alcohol use affecting their ability to parent, the Court may change parenting arrangements to supervised visits to keep the child safe. The child’s welfare will always be prioritised when drug or alcohol abuse is a factor. Most often, though, the court will complete a risk assessment to confirm if allegations are factual and also assess if the substance use is posing a risk to the child or children.
The Court can ask for a risk assessment and require the parent to:
- Stay sober during time with the child
- Do random drug tests (urine or hair)
- Go to a rehab program, if needed
These steps help the Court decide if orders need to be changed or interim orders need to be made to protect children involved. If a temporary change in care is made or supervised visits are ordered, the courts will assess when it’s safe for the parent to have unsupervised time again.
Putting supports in place for the child
When parenting arrangements change or conflict arises, it’s important to support the child’s emotional wellbeing. Children generally love both parents and benefit from contact with their mother and father (or adopted parents, guardians, etc.).
This can include setting consistent routines, involving trusted family members, accessing counselling, or informing schools of the situation. Support helps the child feel safe and heard, and can reduce stress or confusion caused by changes in care or parental conflict.
Counselling, courses, ICLs & family court reports
In difficult parenting matters, the court may involve professionals to help understand what’s best for the child and also to assist parents in obtaining additional skills required to co-parent successfully. This could include family counselling, appointing an Independent Children’s Lawyer (ICL) to represent the child’s interests, or ordering a Family Report written by a psychologist or social worker. These tools help guide fair, child-focused decisions in court.
Family counselling
Family counselling can help parents and children cope with separation, rebuild trust and improve communication. It creates a safe space to discuss feelings and reduce conflict. Courts may recommend or order counselling in high-conflict cases to support better co-parenting and to ensure the child’s emotional needs are being met.
What not to do in parenting matters
Avoid actions that may harm your case or affect the child, like badmouthing the other parent, withholding time without legal grounds, or making threats. Don’t involve the child in adult matters. Acting out of anger or spite can damage your parenting position in court and affect the child’s emotional wellbeing and stability.
Taking a child away from the other parent is a serious action with legal ramifications
Removing a child from the other parent (withholding) without agreement or court approval is considered a serious legal breach and may amount to parental kidnapping. Courts can issue urgent recovery orders, and such actions can negatively impact custody rights. A father must always follow legal channels and seek advice before making any major changes to arrangements.
Consequences for unlawfully taking a child away from the mother, or other parent
Taking a child without legal permission, especially if it breaches parenting orders, can lead to serious legal consequences. The Court may issue a recovery order to return the child and consider fines or changes to parenting arrangements. It may also impact future custody decisions, as the child’s safety and stability are the top priority.
Child support & financial responsibilities
Child support is separate from custody and ensures both parents contribute to the child’s needs. Whether or not a father has full-time care, he may still be required to pay or receive support. Providing for the child financially is a key part of parental responsibility. Legal advice can help fathers understand their obligations and rights.
What happens if the mother is withholding our children?
If a parent is withholding a child without agreement or legal orders, the other parent can apply to the Court for a recovery order or parenting orders to re-establish contact. The Court will assess the situation, including the child’s safety and reasons for withholding, and may enforce or change arrangements accordingly. If there is a history of domestic violence or family violence, this will be considered during any custody proceedings to ensure the safety of everyone involved.
Enforcement of court orders
If one parent isn’t following court orders, the other can apply to have them enforced. This may involve recovery or location orders to ensure the child is returned or contact is restored. Fathers should not ignore breaches but seek legal help to address them. Compliance is key to maintaining stable parenting arrangements.
Addressing family law disputes for parenting matters
When parents can’t agree on custody or parenting time, they may need help from a mediator, family dispute resolution (FDR), or the courts. The court’s primary focus is the child’s best interests, including their safety, stability and meaningful relationships with both parents. Issues such as family violence, substance abuse or neglect can strongly influence decisions.
If communication has broken down or arrangements are unclear, professional support and legal advice are essential. These services can help parents understand their rights, explore options, and work toward a safe and practical outcome that prioritises the child’s wellbeing.
Ensuring a child’s best interests are met
All family law decisions are guided by the child’s best interests. Courts consider factors such as each parent’s relationship with the child, living conditions, and any risk of harm. If there is no abuse or major concerns, maintaining strong relationships with both parents is generally ideal. Fathers must show they can provide a stable, caring environment to support the child’s development.
Considering the child’s wishes in child custody disputes
When navigating child custody disputes in court, the child’s views are taken into account, especially if they’re older and mature enough to express a clear opinion. The court balances the child’s wishes with their overall best interests. A father should respect the child’s feelings and maintain a loving, open relationship while ensuring the child’s safety and emotional wellbeing are always prioritised.
Court orders & custody
Court orders are official, legally binding arrangements that outline where a child lives and how parenting time is shared. Fathers must follow these orders or apply for changes through the court if circumstances shift. Orders can also include protections like supervised visits. Understanding and complying with court orders is vital to maintaining a positive, legal parenting arrangement.
Applying for court orders for the first time
To apply for parenting (custody) orders, the Family Law Act requires that you must first attempt Family Dispute Resolution (FDR) unless your matter is exempt due to issues like family violence. If no agreement is reached, you can apply to the Family Court or Federal Circuit and Family Court of Australia by filing an Initiating Application and supporting documents, which will include a 60I certificate. The court will consider the child’s best interests when deciding on care arrangements.
Applying to change current parenting orders
If existing court orders no longer meet the child’s needs, you can apply to vary the orders. You’ll need to show a significant change in circumstances, such as relocation, safety concerns or a breakdown in parenting arrangements. File a new application with supporting evidence and explain why a change is necessary. Legal advice is recommended to support your application and meet court requirements. It’s also crucial to consider the importance of a child’s relationship with both parents when seeking to change orders.
Enforcing parenting orders – when the other parent is withholding a child or breaching orders
If a parent is breaching court orders, such as withholding the child, you can apply to enforce the orders through a Contravention Application. The court may issue penalties or change the arrangements. If urgent, you can also request recovery or location orders to find and return the child. It’s essential to document breaches and seek legal advice for enforcement to take place.
Applying for a recovery order
A recovery order is used to return a child who has been taken or withheld in breach of a parenting order. File an application with the court, including an affidavit explaining the situation. The court may authorise police to assist in locating and returning the child. This order prioritises the child’s safety and the stability of existing parenting arrangements.
Applying for a location order
If a child’s whereabouts are unknown, a location order can compel a person or government agency (like Centrelink or the ATO) to provide information about the child’s location. It’s usually used alongside a recovery order and requires filing an application with supporting evidence showing that the child’s location is being hidden or not disclosed. This may not be a suitable option in matters of domestic and family violence.
Urgent and interim orders
If your case is urgent, such as a risk to the child’s safety, you can apply for interim orders while the final parenting case is being decided. This can include temporary care arrangements or protection measures. The Court may hear urgent matters quickly, especially if there’s immediate danger or significant disruption to the child’s wellbeing.
Preparing for court proceedings
If you are going to court for a family law matter such as custody, preparation is crucial. Fathers should gather evidence of their involvement, care and ability to meet the child’s needs. This includes documents, communication records and reports. Legal advice is essential to present a strong case. The court’s primary consideration will always be the child’s best interests.
Making effective co-parenting and communication a priority
Strong communication and respectful co-parenting can make custody arrangements smoother and more stable. When parents work together and keep the child’s needs front and centre, conflict is reduced, and outcomes improve. A cooperative approach builds trust and provides a more positive environment, helping the child feel secure and supported by both parents.
Consult with a dedicated family law firm with experience in resolving complex parenting matters.
Speaking with a family lawyer is vital when dealing with child custody matters, especially when there is high conflict, risk of harm to a child or disputes over who has care.
Our family lawyers can explain your rights, help with negotiations and court documents, and guide you through the legal process. Fathers benefit from expert advice when making important decisions, and legal support ensures that the child’s needs remain the top priority. Please get in touch today to explore your options and move forward with your family law matter.