AustraliaHow does the court decide who gets custody of our children after separation?
The court decides child custody (now called 'parenting arrangements') based solely on the best interests of the child, as set out in the Family Law Act 1975.
What the Law Says
Australian family law does not use the term 'custody'. Instead, it focuses on 'parenting arrangements' that serve the child’s best interests. The Family Law Act 1975 sets out how courts make these decisions.
The court must apply a statutory checklist to determine what arrangement is in the child’s best interests. This is the only legal test — there is no automatic preference for mothers, fathers, or any other person.
Two primary considerations are given the greatest weight: (1) the benefit to the child of having a meaningful relationship with both parents, and (2) the need to protect the child from physical or psychological harm, including abuse, neglect or family violence.
If these two factors conflict, the protection from harm always outweighs the benefit of a relationship. The court must also consider at least 16 additional factors — such as the child’s views (if appropriate), maturity and level of understanding; the nature of the relationship with each parent and others; each parent’s willingness and ability to facilitate a relationship with the other parent; and practical difficulties affecting time with either parent.
Statutory TextThe best interests of the child are the paramount consideration.
— Family Law Act 1975, s. 60CA — Best interests of child paramount
Statutory Text(1) In deciding whether to make a particular order in relation to a child, a court must regard the best interests of the child as the paramount consideration. (2) A court must consider the matters set out in subsection (3) (the primary considerations) and subsection (4) (the additional considerations).
— Family Law Act 1975, s. 60CC — Determination of best interests
Statutory Text(3) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm...
— Family Law Act 1975, s. 60CC(3) — Primary considerations
Statutory Text(4) Additional considerations include: (a) any views expressed by the child...
— Family Law Act 1975, s. 60CC(4) — Additional considerations
What to Do
Try to reach agreement with the other parent through family dispute resolution (FDR) before applying to court — it’s usually required unless an exemption applies.
Gather evidence relevant to the child’s best interests — e.g., school reports, medical records, witness statements, family violence orders.
File an Initiating Application in the Federal Circuit and Family Court of Australia, along with a genuine steps certificate (unless exempt).
Attend court events including conciliation conferences and, if needed, a final hearing where evidence and submissions will be heard.
Consider seeking legal advice early — parenting cases involve complex evidence and strict procedural rules.
Sources
Same Question, Other Jurisdictions
Germany
Canada
Ireland
Singapore
UK
US-California
US-New York
Japan
South KoreaNot legal advice. This article is general information based on publicly available sources, written for educational purposes. Laws change and individual situations vary. Consult a licensed attorney in your jurisdiction before acting on anything you read here. Last reviewed: 2026-06-08.