Please note: Despite frequent use, ‘custody’ is not a legal term in the current Australian family law system. The correct terms are:
- Parental responsibility – the rights and responsibilities of both parents (usually shared)
- Living arrangements – who the child lives with (usually shared)
- Time spent – how often they see each parent (usually shared)
- Decision making – who makes major decisions (usually shared)
Seeking full-time care (custody) for a child in Victoria
Obtaining full child custody in Australia is possible in some circumstances, if it’s deemed to be in the best interests of the child. Custody is no longer used in Australian family law, due to its negative connotations related to ownership. In family law proceedings, references will be made to time spent with each parent and living arrangements.
Having full-time care of a child is necessary in some cases, such as when one parent is unable to care for a child, does not wish to be a part of a child’s life, or has significant issues such as severe addiction or serious mental illness or health conditions that means they cannot be present parent.
Child abuse and family violence are other considerations that can significantly affect a child’s wellbeing and would place a supportive and healthy parent in a position to seek full-time care. Relocation matters may also make it necessary for one parent to have all, or the majority of, care.
It’s not something that should be lightly considered when children have two parents who are capable, loving and wish to be present in the child/ren’s lives, and the courts will weigh up what is in the best interests of the child.
Australian family law & care of children (custody arrangements)
Australian family law presumes that parents hold equal parental responsibility, meaning that in most cases, time spent with children after a divorce or separation is shared, not necessarily on an equal basis, but in a way that children have time with both of their parents.
However, in some cases, it’s not best or simply not possible for care to be shared. Parenting arrangements look different in every family, and a child’s living arrangements can be affected by many variables.
Full-time ‘child custody’ is having full-time care of children, or sole parental responsibility
Full child custody or sole parental responsibility occurs when one parent has all, or the majority of, care, and a child’s access to the other parent may be limited. If that parent also has full decision-making responsibility (which is separate from care arrangements), they will make all decisions regarding the child’s upbringing. That could include reasonable disciplinary measures, choosing schools, religious education, and where the child lives.
It’s important to note that it’s extremely rare for the court to completely deny access to one parent; usually, they are allowed supervised contact or limited visitation.
Parental responsibility
In Australia, the starting point under the Family Law Act 1975 is that both parents share equal parental responsibility, whether together or separated. This means they jointly make major decisions about the child’s welfare, education and health. This reflects the legal presumption that children benefit from having both parents involved in their lives.
Shared care arrangements, even if limited to supervised visits, allow a child to maintain a relationship with both parents while prioritising their safety and wellbeing. In cases involving family violence, abuse, or serious concerns about a parent’s ability to provide a safe environment, one parent may be granted sole parental responsibility, meaning full decision-making power over the child’s welfare, education and health.
This setup ensures important decisions are made by the parent who is best able to protect the child while still allowing the other parent some contact under controlled, supervised conditions to support the child’s emotional needs.
What is really best for the child?
When a child is in full‑time or near full‑time care with one parent, the court always evaluates whether this arrangement genuinely serves the child’s best interests. A strong, meaningful relationship with both parents is central to the decision under Section 60CC of the Family Law Act.
Full‑time care may be best when one parent’s home offers greater stability, safety or continuity in schooling and community. However, it should not compromise the child’s ongoing connection with the other parent or other important adults in their life. Evaluating the parents’ capacity to support both emotional and practical needs, including facilitating time with the non-resident parent, is essential to maintaining the child’s relationships and overall wellbeing.
Alternatives to full custody of a child
In the majority of family law matters, it’s possible for arrangements to be made that allow both parents access to their children,
Option One: Less time spent with one parent, on a temporary or permanent basis
Option Two: Temporary arrangements made for a child to be with one parent while the other parent addresses issues preventing them from parenting appropriately
Option Three: Supervised visitation rights, on a temporary or permanent basis
Option Four: Both parents have time with the children, and one parent has sole decision-making responsibility
These options may not be suitable when there is a risk of harm to a child. Matters such as neglect, child abuse, domestic violence, significant substance abuse or physical or mental health issues that prevent a child from being cared for may require supervised visitation, if it’s in the best interests of the child to spend time with that parent.
Why do courts grant sole custody in Australia?
The court will always start with the presumption that shared custody is the best option. However, if seeing both parents is not in the child’s best interest, one parent may be granted sole custody in Australia. These circumstances may include:
- One parent with a history of domestic or family violence that may put the child at risk.
- Evidence of neglect from one parent, such as not providing food or shelter.
- An unwillingness to communicate with the other parent and attempts to alienate the child from their parent.
- Substance or alcohol abuse that affects the parent’s ability to care for their child.
- Severe mental illness that affects the parent’s ability to care for their child.
To achieve sole parental responsibility, you’ll need to prove to the court that circumstances such as the above examples have occurred or are occurring, and that sole parental responsibility is in your child’s best interest.
How to get full child ‘custody’ in Australia
Generally speaking, there are two pathways to get full-time care in child custody cases in Australia:
- If the other parent agrees to grant you sole parental responsibility, you can formalise the arrangement via a consent order.
- If the other parent doesn’t agree, you’ll need to seek legal advice from a child custody lawyer and apply to the Federal Circuit and Family Court of Australia.
Option one is always the easiest and least stressful route, so all efforts should be made to reach a resolution outside of court. Only if that’s not possible should you proceed to option two.
Legal steps
To apply, you must file for orders through the Federal Circuit and Family Court of Australia. Evidence may include police reports, intervention orders (AVOs), child protection records, medical or psychological evaluations, and proof of the other parent’s inability to care for the child.
For a legally binding arrangement, a Consent Order is the stronger option. This is a formal agreement lodged with the Federal Circuit and Family Court, covering the same issues as a Parenting Plan but with the force of a court order. If both parents agree, you can apply without going to court.
If there’s no agreement, or if family violence is involved, you’ll need to apply for Parenting Orders, asking the court to grant sole parental responsibility and limit the other parent’s involvement. In such cases, the child’s safety and best interests will guide the court’s decision.
The court will also assess your capacity to provide a stable, safe and nurturing home. Legal advice is strongly recommended to help navigate the process.
Family violence orders
In Australia, if you’re seeking full care of a child due to family violence, you may apply for sole parental responsibility and primary residence through the Federal Circuit and Family Court of Australia. The court prioritises the child’s safety and best interests, especially where domestic or family violence is involved. If one parent poses a risk, the court may restrict or remove their decision-making rights and contact.
Intervention Orders (IVOs) can include conditions protecting both you and the child from an abusive parent. These orders may limit contact or prevent the other parent from approaching or communicating with the child. Evidence such as police reports, medical records, child protection involvement or witness statements will be critical. Courts may order supervised contact or, in severe cases, no contact at all. Legal support is highly advised when seeking these protections.
The child’s voice
In Australian family law, a child’s voice is considered through their wishes, but it’s just one factor in deciding what’s in their best interests. The court looks at the child’s age, their emotional and intellectual maturity and understanding before giving weight to their views. Independent professionals, such as a Family Consultant or an Independent Children’s Lawyer (ICL), may be appointed to help present the child’s perspective in a way that supports their safety, wellbeing and long-term development.
Vexatious proceedings
In Australian family law, vexatious proceedings refer to repeated or baseless legal actions intended to harass or burden the other party. These can delay resolution, increase costs and cause emotional harm, especially in parenting matters.
Courts can declare a person a vexatious litigant under the Vexatious Proceedings Act 2014, restricting them from filing further applications without permission. This helps protect victims from legal abuse and ensures court resources are used fairly and appropriately.
When is seeking full custody not a good idea?
Seeking full custody isn’t always the right approach and should never be about one parent’s preferences or control; it must be based solely on what’s best for the child. Here are situations where pursuing full custody may not align with that principle.
Below are key situations where it may not be suitable or supported by the family law system.
When it’s not in the child’s best interests
Courts focus on the child’s best interests, not parental preferences. If both parents are capable, involved, and pose no risk, full custody may be seen as unnecessarily limiting the child’s right to have a meaningful relationship with both parents.
When there’s no evidence of risk or harm
Without evidence of abuse, neglect, family violence, or serious dysfunction, seeking sole parental responsibility can come across as controlling or retaliatory, especially during or after separation. Courts may view this as contrary to cooperative co-parenting.
When it could escalate conflict
Pursuing full custody can heighten conflict, lead to long and costly legal battles, and emotionally impact the child. In many cases, working toward a shared parenting arrangement, with legal advice and possibly mediation or counselling, is more constructive.
When it’s about punishment, not protection
If the motive is to punish the other parent or “win” the breakup, rather than protect the child, the court is unlikely to support a full custody claim. Family law discourages using the legal system to settle personal grievances.
Options for resolving your matter
To seek full custody of a child in Victoria, parents are encouraged to first try reaching an agreement outside of court through mediation or by working with a Family Dispute Resolution Practitioner. If there are reasonable grounds, such as concerns for the child’s wellbeing or domestic violence, you may apply for sole responsibility under the Family Law Act 1975.
If an agreement is reached, it can be formalised through an application for consent orders that can be e-filed via the Commonwealth Courts Portal or at a court registry, avoiding costly court proceedings.
Hiring an experienced child custody lawyer in Victoria
Gaining full child custody is the exception, not the rule, but it is possible in some circumstances. However, the process can be complicated and proving that sole custody is in your child’s best interest can be difficult. To give yourself the best possible chance of achieving a desirable result, it’s a great idea to hire an experienced child custody lawyer.
Testart’s team of family lawyers have years of combined experience helping parents win sole custody and do what’s best for their children. We can help guide you through the entire process to make the ordeal easier and less stressful, while providing honest, expert advice.
