Separation can bring significant changes to a child's everyday life.

Parents may need to decide where their child will live, how much time they will spend with each parent, arrangements for school holidays and special occasions, and how important long-term decisions will be made.

Many parents are able to reach these arrangements themselves. Where they cannot agree, Australian family law does not begin with a fixed formula for how a child's time should be divided.

The central consideration is the best interests of the child.

Is there a presumption that children spend equal time with each parent?

No.

There is no presumption that children should spend 50/50 or equal time with their parents.

The parenting laws changed on 6 May 2024, including the removal of the former presumption of equal shared parental responsibility and the associated provisions that required consideration of equal or substantial and significant time in particular circumstances.

This does not prevent parents from agreeing—or the Court from ordering—that a child spend equal time with each parent where appropriate. It simply means there is no statutory starting point requiring that arrangement.

Related article: Equal Shared Parental Responsibility Is No Longer Presumed: What Parents Need to Know.

What does the Court consider when deciding a child's best interests?

Section 60CC of the Family Law Act 1975 sets out the matters the Court must consider.

They include:

• arrangements that promote the safety of the child and each person caring for the child, including safety from family violence, abuse, neglect or other harm;
• any views expressed by the child;
• the child's developmental, psychological, emotional and cultural needs;
• each proposed carer's capacity to meet those needs;
• the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
• anything else relevant to the child's particular circumstances.

Additional considerations apply for an Aboriginal or Torres Strait Islander child concerning the child's right to enjoy their culture.

There is therefore no universal parenting arrangement that the Court simply applies to every family.

Does the child get to choose where they live?

A child's views can be relevant, but there is no particular age at which a child simply decides the outcome.

The Court must consider any views expressed by the child, but the significance given to those views will depend upon the circumstances.

The Act directs the Court to consider matters relevant to the weight given to a child's views, including the child's age and maturity.

Children are also not required to express a view.

In Court proceedings, their views may be obtained through processes such as a Family Report, rather than placing the child in the position of having to choose between their parents.

Related article: Family Reports in Australian Family Law: What to Expect and How to Prepare.

What role does safety and family violence play?

Safety is expressly included in the current best-interests framework.

The Court considers what arrangements would promote the safety of the child and of each person caring for the child.

When considering safety, it must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, as well as relevant family violence orders.

Depending on the circumstances, safety concerns may affect where a child lives, how and when they spend time with another person, changeovers, communication and decision-making arrangements.

What can parenting arrangements cover?

Parenting arrangements can extend well beyond deciding where children sleep.

Parenting orders can address matters including:

• who a child lives with;
• the time a child spends with each parent or other significant people;
• how a child communicates with a parent or another person;
• allocation of parental responsibility and decision-making;
• holidays and special occasions; and
• other aspects of the child's care, welfare and development.

Good parenting arrangements also need to be sufficiently practical for the particular family.

The child's age, schooling, activities, parents' work commitments, distance between households and other circumstances may all affect what arrangements are workable.

Who makes important decisions about the child?

Parents generally have parental responsibility for a child under 18, subject to any parenting order.

If the Court makes an order for joint decision-making about a major long-term issue, the people covered by the order must consult each other and make a genuine effort to reach a joint decision.

Major long-term issues can include matters concerning education, health, religious and cultural upbringing, the child's name and significant changes to living arrangements.

The Court can also make orders providing for one person to have sole decision-making responsibility for particular issues where appropriate.

What if we agree on the parenting arrangements?

Parents who reach agreement do not necessarily need a contested Court case.

An agreement can commonly be documented through either a parenting plan or consent orders.

A parenting plan is a written, signed and dated agreement concerning parenting arrangements. It is not itself legally enforceable.

Consent orders are orders made by the Court by agreement. Once made, they are legally binding and enforceable. Even where both parents agree, the Court must be satisfied that proposed parenting orders are in the child's best interests.

The appropriate option depends upon the family's circumstances.

What if we cannot agree?

Parents are generally required to make a genuine effort to resolve parenting disputes through Family Dispute Resolution (FDR) before applying to the Court.

FDR involves an independent registered practitioner assisting parents to try to resolve their disagreement.

There are exceptions to the pre-filing requirement, including in certain circumstances involving family violence, child abuse, risk and urgency.

If agreement still cannot be reached, a parent may apply to the Federal Circuit and Family Court of Australia for parenting orders.

What happens once Court proceedings begin?

The Court may make interim orders while the proceedings are underway and ultimately final parenting orders if the matter does not resolve beforehand.

Depending on the issues, the Court may also have evidence from affidavits, subpoenaed material, expert evidence or a Family Report.

The precise process varies considerably depending upon the complexity and circumstances of the family.

Can grandparents or other significant people be included?

Yes.

Parenting orders are not limited to arrangements between two parents.

The legislation expressly allows applications by grandparents and other people concerned with the child's care, welfare or development, and parenting orders can address time and communication with other significant people.

The child's best interests remain the paramount consideration.

Can parenting arrangements be changed later?

Sometimes.

Informal arrangements and parenting plans can generally be changed by further agreement.

Final parenting orders are different. If one parent seeks to change final orders and the other does not agree, the Court must first consider whether there has been a significant change of circumstances and whether reconsidering the final parenting order would be in the child's best interests.

This is one reason it is important to think carefully about proposed final orders rather than treating them as temporary arrangements.

What should parents focus on after separation?

Parenting disputes can easily become focused on what each parent believes is fair to them.

The legal framework takes a different approach.

The focus is on the particular child—their safety, needs, circumstances, relationships and the arrangements that are in their best interests.

For some families, that may involve substantial or equal time with both parents. For others, a different arrangement may better meet the child's needs.

There is no automatic formula.

Getting legal advice about parenting arrangements

Obtaining legal advice early can help parents understand how the current law applies to their family, what options are available for resolving disagreements and how any agreement should be documented.

It can also help identify issues that should be addressed before arrangements are finalised, particularly where there are safety concerns, significant disagreement about decision-making or existing parenting orders.