How to Get Full Custody as a Mother in Australia

You are a mother, and something about the other parent frightens you, maybe the drinking, maybe the way handovers go, maybe the messages that come through at midnight. So one night you type ‘how do I get full custody as a mother’ into Google, hoping the law is on your side because you are the mum.

Let me give you the honest answer before anything else. Australian family law does not favour mothers, or fathers. There is no automatic win for being the mother, and there is no maternal preference written into the law anywhere. What decides these matters is one thing only: the best interests of the child. That is the same test for you as it is for the other parent.

That is not the answer most mothers want. But it is the one that helps you, because once you know the court is not going to hand it to you or take it from you based on gender, you can start building the case that actually counts. Here is what ‘full custody’ really means now, whether being the mother changes anything, and the steps that move a court. If you want a person to walk it through with you, that is what me and my team do as child custody lawyers.

Does being the mother help?

This is the myth I have to correct more than any other.

One of the biggest myths we hear all the time is that the court always favours the mother. Gender doesn’t give you a free pass in the family court. So if you’re assuming you’ll get full-time care because you’re the mum or the dad, slow down. The law sees parents as equals.

So the law treats you and the other parent as equals. Here is the part that confuses people, though, because in practice the outcomes often look different from what the law says on paper.

While the law doesn’t favour mothers, the outcomes often do. According to the Australian Institute of Family Studies, only 3% of all cases result in children living primarily with their fathers after separation. Around 79% of kids mostly live with their mothers, and just 7% of separated parents have a true 50-50 shared care arrangement.

So what does that mean for you? It means the law makes no assumption about your parenting role, and the Australian Government says exactly that in its own plain-English terms on Family Relationships Online. The reason mothers end up as the primary carer so often is not a rule. It usually comes down to who has been doing the day-to-day caring. That is the thing you can actually influence: not your gender, but what you can prove about the child’s safety, stability and what is best for them.

What full custody actually means now

‘Full custody’ is not a legal term in Australia. It has not been for years. What you are really asking about is the following two things:

1. Having sole parental responsibility, which is the right to make the major long-term decisions for your child on your own, about their schooling, their health, their religion, where they live.
2. A child’s primary residence – or full time care, which is where the child actually lives day to day, sometimes described as the child spending most of their time with you.

You can have one without the other. A court can decide the child lives mainly with you but that both parents still share the big decisions. Or it can give you sole responsibility for decisions because consulting the other parent is not safe or workable. When people say ‘full custody’, they usually mean both together, and both are decided under the best-interests test in the Family Law Act 1975 (Cth), s 60CC.

What changed on 6 May 2024

This matters, because a lot of what you will read online is out of date.

On 6 May 2024 parenting laws in Australia changed. The old presumption of ‘equal shared parental responsibility’ when making parenting orders in court, which was the starting assumption that decision-making should be shared between parents, was removed. The best-interests factors in s 60CC were simplified at the same time.

Here is what that means in practice. Both parents have parental responsibility when their child is born. For some years, the courts assumed ‘equal shared parental responsibility’ when making orders, which also gave rise to the 50/50 week about care splits. There is no longer any starting point that says decisions should be shared when applying for orders, and no automatic pull toward equal time.

The court now begins and ends with the child’s best interests, full stop. If you are reading an article dated before that change, or one that still talks about ‘equal shared parental responsibility’ as the default, it is describing the old law.

What the court actually weighs

Think of the ‘grounds’ for full custody not as boxes to tick but as what you would need to show. Since 6 May 2024 the court works through a shorter list of best-interests factors under s 60CC, and the ones that carry the most weight for a mother worried about the other parent are:

• Safety. What keeps the child safe from harm, abuse, neglect or family violence, including the safety of anyone who cares for them. This sits at the top.
• The child’s needs. Their developmental, psychological, emotional and cultural needs, and which arrangement meets them.
• Each parent’s capacity. Whether each parent can actually meet those needs day to day.
• The child’s views. What the child wants, given their age and maturity.
• A relationship with both parents, but only where it is safe to have one.

On that fourth point, mothers often assume an older child asking to live with them settles it. It does not.

People always say to me, my daughter, she wants to spend more time with me. She wants to live with me at my house. Isn’t that enough? The short answer is no, it’s not. Children don’t get to make the final decision if there are orders already in place. You and the other parent need to make an agreement, or have the court decide. The court will consider your child’s views, especially as they get older and more emotionally mature, but a child saying they want something does not just override a parenting order.

So your child’s wishes count, and they count more as the child gets older, but they are one factor among several. In a healthy co-parenting relationship, parents should be able to make the call themselves if a child is strongly expressing something.

But in court? The safety evidence is what does the heavy lifting.

The pathway – with and without court

You do not walk into a courtroom on the day a child expresses they may prefer to live somewhere, unless there is an urgent and immediate safety concern. In fact the law strongly encourages parents to try to sort it out first.

Here is the order it runs in.

Before you even think about court, have these things ready:

• A clear, honest picture of your child’s current routine and who does what
• Any evidence of the concern you have (messages, incidents, a parenting journal, reports)
• Relationship timelines – when you separated, current arrangements, anything that has changed

Step 1. Family dispute resolution. Before you can file in court over parenting, you generally have to attempt family dispute resolution, a structured mediation aimed at reaching agreement without a judge. There are limited exceptions where you can skip it, mainly family violence or genuine urgency.

Step 2. The s 60I certificate. If mediation does not resolve things, the practitioner issues you a s 60I certificate. That certificate is what lets you file a parenting application in court.

Step 3. Formalise the agreement, or apply to court. If you reach an agreement, you can turn it into consent orders, which the court approves so the arrangement is binding and enforceable. If you cannot agree, you apply for a parenting order in the family court process, run by the Federal Circuit and Family Court of Australia, and a judge decides. If there are already orders in place and you need them altered, that is a different application again. See our article about changing family court orders to learn more here.

One thing most people do not know, and it can hold things together while a case drags on, is this, a little tip we like to give our clients.

You can get interim orders to keep things stable during a period of time when you’re waiting for final orders in court. Let’s say you’ve applied to court and now you’re waiting for a final hearing, and that could be one or two years away. What happens in the meantime? You can ask the court for interim orders, which are temporary orders that can stabilise things.

Practical steps to strengthen your case

If you take nothing else from this page, keep these points in mind. They are the things I tell clients to start doing today, before any hearing:

1. Keep a parenting journal. Dates, routines, who does the school pick-up, who takes them to the GP, what was said at handover. Contemporaneous notes carry real weight.
2. Stay actively involved. School, health, activities. Involvement you can document is worth more than involvement you only assert.
3. Provide a safe, stable home. A steady routine and a safe environment is exactly what the safety and needs factors are looking for.
4. Do not talk the other parent down in front of the child. Courts notice it, and it counts against the parent who does it.
5. Comply with any existing orders. Even ones you dislike. Showing you follow orders now tells the court how you will behave later.

Where to start

You cannot change the fact that being a mother does not tip the scales. What you can change is how well you show what your child needs and what keeps them safe. That is what it all comes down to, and it is something you can build properly, piece by piece, around the child’s safety and needs.

If any of this is weighing on your mind, book in a chat with me and my team. As child custody lawyers, this is what we do every day. Free discovery call on 1300 614 732, or send us a message. No pressure, no judgment, just honest advice about where you actually stand and what to do next.