How does a judge determine visitation rights?

"Visitation" and "access" are words many people still use, but Australian family law stopped using them years ago. A parenting order now says who a child lives with, the time the child spends with another person, and how the child communicates with them (s 64B(2) of the Family Law Act 1975 (Cth)). The change of words reflects the idea that time with a parent is about the child's relationship with that parent, not a right a parent holds.

In Western Australia, these decisions are made by the Family Court of Western Australia, by a judge or, more often, a magistrate.

Children are not bargaining chips

Sometimes a parent refuses to pay child support unless they see the children, or refuses time as a way of punishing the other parent. Both are mistakes. Child support and time are separate under the law, and using one to pressure the other is likely to count against the parent who does it.

The test: the child's best interests

The child's best interests are the paramount consideration (s 60CA). For a child whose parents were married, the court considers the factors in s 60CC(2) of the federal Act. For a child whose parents were never married, the same factors are in s 66C of the Family Court Act 1997 (WA). They are:

(a) what arrangements would promote the safety of the child, and of each person caring for the child;

(b) any views the child has expressed;

(c) the child's developmental, psychological, emotional and cultural needs;

(d) the capacity of each parent, or other carer, to meet those needs;

(e) the benefit to the child of a relationship with each parent and other significant people, where it is safe;

(f) anything else relevant to the child.

The court also considers any history of family violence, abuse or neglect, and any family violence order.

What changed in 2024 and 2025

Before 6 May 2024, the federal Act presumed that equal shared parental responsibility was in a child's best interests, and where it was ordered, the court had to consider equal time, or substantial and significant time, with each parent. That presumption and that pathway were repealed. Western Australia made the same change for children of unmarried parents on 10 February 2025.

There is now no starting point of equal time, or of any other amount of time. The court decides the time that suits this child, on the factors above.

Interim decisions

A parenting case can take many months to reach a final hearing. In the meantime, the court can make interim orders. At an interim hearing, the evidence is usually written: affidavits from each parent, and any reports already available. Witnesses are not usually cross-examined, so the court cannot normally decide which version of disputed events is true.

That means when one parent raises serious safety concerns, such as drinking or violence, and the other denies them, the court is likely to take a cautious approach until the evidence can be tested. It may order time that is supervised, shorter, or in a public place, or time that steps up as conditions are met. A parent who receives less time than they hoped at this stage has not lost the case; the final hearing looks at everything afresh.

Final decisions

At a final hearing, the evidence is tested, and the court often has a family report from a family consultant, who has spoken with the parents and usually the children. The court can then make findings about disputed facts and decide the arrangements that best serve the child.

Final parenting orders are meant to last. Before reconsidering one, the court must consider whether there has been a significant change of circumstances, and must be satisfied that reconsidering the orders is in the child's best interests (s 65DAAA; WA s 89AAA). Orders can also be changed with everyone's consent.

Practical steps

If you cannot agree on the time the children spend with each of you:

(a) try family dispute resolution first. You usually need a certificate from a family dispute resolution practitioner before applying for parenting orders, though there are exceptions, including family violence and urgency;

(b) keep communication with the other parent brief, polite and focused on the children. The law encourages parents to consult each other on major issues where it is safe to do so (s 61CA; WA s 69A);

(c) do not post about the dispute on social media;

(d) keep a factual record of handovers, missed time and any incidents;

(e) get legal advice early, before positions harden.

Parenting arrangements are often settled alongside the division of property and money, which has its own process and time limits.

This article is general information, not legal advice.