When parents separate, the most important and emotionally charged question is what happens with the children. Who will they live with? How much time will they spend with each parent? Who makes the big decisions about their schooling, health and upbringing? At Bruce Dulley Family Lawyers we help Brisbane parents resolve these questions sensibly and lawfully, always with the children's wellbeing at the centre.
Australian family law has moved away from old language like "custody" and "access". The modern terms are about parental responsibility and the time a child spends and communicates with each parent. The single guiding principle in every parenting matter is the best interests of the child. This is the paramount consideration the Court must apply, and it should guide every parent's decision-making too.
Following significant reforms that commenced in May 2024, the law now focuses squarely on what promotes a child's safety and best interests, rather than on any presumption about equal time. In deciding what arrangements serve a child's best interests, the Court considers what arrangements promote the child's safety (including safety from family violence, abuse or neglect), the child's views, the child's developmental, psychological, emotional and cultural needs, the capacity of each parent to provide for those needs, and the benefit to the child of being able to have a relationship with both parents where it is safe to do so. For Aboriginal and Torres Strait Islander children, the Court must also consider their right to enjoy their culture. Safety is the priority — a meaningful relationship with both parents is encouraged only where it is safe.
Most parenting arrangements do not need a judge to decide them, and the law strongly encourages parents to reach agreement themselves. In fact, before you can file a parenting application in court, you generally must first attempt Family Dispute Resolution (mediation) and obtain a section 60I certificate, unless an exception applies — for example, where there is family violence, child abuse, or genuine urgency. Mediation gives parents the chance to craft arrangements that fit their family rather than having an outcome imposed on them.
When parents reach agreement, they can record it in two ways. A parenting plan is a written, signed and dated agreement that is flexible and can be changed as circumstances evolve, but it is not legally enforceable. Consent Orders are filed with the Court and, once approved, are legally binding and enforceable like any court order. Which option suits you depends on the level of certainty you need and the level of cooperation between you and the other parent.
Where agreement is not possible — or where there are safety concerns, family violence, substance abuse, mental health issues, or one parent is withholding the children — an application to the Court may be necessary. The Court can make orders about who a child lives with, the time and communication a child has with each parent and other significant people such as grandparents, and how parental responsibility is allocated. In appropriate cases the Court may appoint an Independent Children's Lawyer to represent the child's interests, or order a family report from an expert.
Our approach is to lower the temperature, keep the focus on the children, and pursue arrangements that are workable in real life. We will always look to resolve matters by agreement where it is safe and sensible to do so, and we will act firmly to protect a child and a parent's relationship where that is what the situation demands. Every family law matter is different. The information on this page is general only and is not legal advice. To discuss your situation in confidence, request a confidential consultation with our Brisbane family law team.
Related family law topics
Many of our clients also need advice on Child Support & Child Maintenance , Relocation, Recovery & Location Orders , Family Law Mediation and Family & Domestic Violence Orders .