In this guide
- The legal position: no gender preference
- What "best interests of the child" means
- Equal time vs equal shared responsibility
- The 2023 Family Law Act reforms
- Why mediation is the better first step
- What to do if your ex refuses contact
- Family violence orders and parenting
- Practical steps fathers can take now
- Frequently asked questions
Key takeaway: Australian family law does not automatically favour mothers. The law is child-focused, not parent-focused — courts and mediators assess what parenting arrangements serve the children's best interests, without any presumption based on gender. Fathers have the same legal standing as mothers to seek meaningful time with their children. The fastest, least damaging way to secure that time is through parenting mediation, not court.
The legal position: no gender preference in Australian family law
The Family Law Act 1975 does not contain any presumption in favour of mothers or fathers. Section 60B states that children have a right to know and be cared for by both their parents, and section 60CC sets out the factors courts must consider when determining parenting arrangements — none of which include the parent's gender.
In practice, outcomes historically favoured mothers in terms of primary care arrangements — largely because mothers were more often the primary carer during the relationship. As family structures have shifted and more fathers are primary or equal carers, outcomes have followed. The law reflects what actually happened in the family, not what a parent's gender suggests should happen.
A father who was actively involved in his children's care before separation has strong grounds to seek continued, meaningful involvement after separation. A father who was less involved has grounds to increase involvement going forward — courts can and do make orders that increase a parent's role over time as circumstances evolve.
Protecting your relationship with your children starts with a clear plan. Talk to our mediators about what parenting arrangements are achievable for your situation.
Free consultation — protect your role as a parent →What "best interests of the child" means
Section 60CC of the Family Law Act sets out the factors courts weigh when determining parenting arrangements. Following the 2023 amendments, there are two primary considerations:
- Safety: The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence
- Meaningful relationship: The benefit of the child having a meaningful relationship with both parents
Where safety concerns arise, they take precedence. But where there are no safety concerns — the situation for the vast majority of separating families — the benefit of a meaningful relationship with both parents is a powerful factor. Courts and mediators give real weight to a father's desire to maintain a close, ongoing relationship with his children.
Secondary considerations include the child's own views (depending on age and maturity), the practical difficulty of changeovers, each parent's willingness to facilitate the other parent's relationship with the child, and each parent's capacity to meet the child's needs.
Equal time vs equal shared parental responsibility
These two concepts are frequently confused. Understanding the difference is important:
| Concept | What it means |
|---|---|
| Equal shared parental responsibility | Both parents have equal authority to make major long-term decisions about the child's education, health, and religion. Does NOT mean equal time. |
| Equal time | The child spends approximately equal time (50/50) with each parent. This is a possible outcome but not automatic. |
| Substantial and significant time | A parent spends meaningful time that includes weekdays, weekends, and holidays — even if not equal to 50/50. |
The 2023 family law reforms removed the former presumption of equal shared parental responsibility. Courts now make whatever parenting orders best serve the children's interests without any starting presumption. Equal time is achievable for fathers where it is practical and in the children's best interests — but it is not automatic.
The 2023 Family Law Act reforms — what changed for fathers
The Family Law Amendment Act 2023, which took effect on 6 May 2024, made significant changes to the parenting framework:
- The presumption of equal shared parental responsibility was removed — courts now have unfettered discretion to make whatever parenting orders serve the children's best interests
- The factors courts must consider were restructured — safety is now the first primary consideration
- Courts must consider family violence and its impact on children more explicitly
For fathers without safety concerns: the removal of the presumption of equal shared parental responsibility does not diminish your rights — it simply means the starting point is now neutral. The benefit of a meaningful relationship with both parents remains a central consideration. For fathers making arrangements through mediation (rather than court), the 2023 reforms have little practical impact — mediators have always helped parents design arrangements based on the specific needs of their children and their family's circumstances.
Why mediation is the better first step for fathers
Court proceedings are adversarial — they put parents against each other, produce affidavits detailing each other's failures as parents, and can drag on for years. The adversarial process is particularly damaging for the ongoing co-parenting relationship, which is exactly what children need their parents to maintain.
Co-parenting mediation creates an environment where both parents can negotiate directly — focused on the children's needs, not each other's failings. Fathers who engage in mediation retain control over the outcome, rather than having a judge make orders after a brief hearing. Mediated arrangements also tend to be more durable because both parents have agreed to them.
For parenting matters, FDR is also a legal prerequisite before court — so mediation will be required anyway. Starting it early, with a genuine commitment to resolution, is the fastest path to stability for your children.
Most parenting disputes resolve in mediation without ever needing court. Let us help you reach an arrangement that protects your relationship with your children.
Book a parenting mediation session →What to do if your ex refuses contact with your children
If you are being prevented from seeing your children without a court order in place, your options include:
- Request FDR immediately. Contact an accredited FDRP and initiate the FDR process. If the other parent refuses to attend, you receive a Section 60I certificate (Type 1) that allows you to file in court immediately.
- Apply for parenting orders urgently. If there is genuine urgency — for example, you have had no contact with your children for a significant period without explanation — you can apply to the FCFCOA for urgent interim parenting orders. The Section 60I exemption for urgency may apply.
- Document everything. Keep records of all communications about contact, any refusals, and any contact that does occur. This documentation is important if matters proceed to court.
Do not take unilateral action to remove the children or retain them beyond agreed arrangements — this can amount to parental abduction, which is a criminal offence and will damage your position severely.
Family violence orders and parenting time
A Domestic Violence Order (DVO or AVO) against a father does not automatically end his parenting time. Family violence orders and parenting orders operate in different legal frameworks. However, a DVO may restrict how handovers occur (for example, requiring a third party) and may be relevant to the court's assessment of what parenting arrangements are appropriate.
If a DVO has been issued against you, get legal advice promptly. A family law solicitor can advise on the interaction between the DVO and any parenting orders and assist you in making an application for appropriate parenting time.
Practical steps fathers can take now
- Initiate FDR / mediation: Do not wait for the other parent to make the first move. Contact an accredited practitioner and invite the other parent to participate in mediation.
- Get independent legal advice: A one-hour consultation with a family lawyer can clarify your rights and the realistic range of outcomes for your specific situation.
- Stay involved: Continue attending school events, medical appointments, and activities to the extent the other parent allows. Document your involvement.
- Keep communication in writing: Use email or a co-parenting app (such as OurFamilyWizard or Talking Parents) so there is a record of communications about the children.
- Do not speak negatively about the other parent to the children: Courts take a very dim view of this, and it damages your children. Your willingness to support the children's relationship with both parents is a factor courts consider explicitly.
Frequently asked questions
Do mothers automatically get custody in Australia?
No. Australian family law does not use the term "custody" and does not have any gender preference. "Parenting arrangements" (which include where the children live and how time is shared) are determined based on the children's best interests — without any starting presumption based on the parent's gender.
Can a father get 50/50 parenting time?
Yes. Equal time arrangements are common in Australia where they are practical and in the children's best interests. Factors that support equal time include geographic proximity, both parents' ability to meet the children's daily needs, and the children's own preferences (depending on age). Equal time is achievable in mediation without needing court to impose it.
What if my ex moves away with the children?
Relocating with children against the other parent's wishes, or in breach of parenting orders, is a very serious matter. If children have been relocated without your consent, seek legal advice immediately. You may be able to apply for orders requiring the children to be returned to their home location.
How long does it take to get parenting orders through court?
Contested parenting proceedings in the FCFCOA can take 2–4 years from filing to a final hearing. Interim orders can be obtained sooner (within weeks in urgent cases, months otherwise), but these are temporary. Mediation typically produces binding arrangements within weeks — which is why it is the far more time-efficient pathway for most families.
Related guides
- parenting mediation
- co-parenting mediation
- child custody mediation
- family mediation
- Section 60I certificate
The parenting framework is in the Family Law Act 1975 (Part VII). For research on post-separation parenting outcomes, see the Australian Institute of Family Studies.