Parenting Arrangements after Separation

How Does the Court Decide?

When parents separate, one of the most common questions is: who will the children live with, and how much time will they spend with each parent?

Many people approach this question in terms of a “50/50” split” or refer to “full custody” and “shared custody”. However, these terms are not used in Australian family law, and they can sometimes lead to misunderstandings about how the decisions are actually made.

No “custody” in Australian Family Law

Under the Family Law Act 1975, the terms “custody” and “access” are no longer used.

Instead, the law focuses on:

·       Parental responsibility (decision-making about major long term issues), and

·       The time a child spends with each parent.

This reflects a shift away from parents “winning” or “losing” custody, and towards arrangements that best support the child.

The Most Important Consideration: The Child’s Best Interests

When determining parenting arrangements, the court’s primary consideration is always the best interests of the child.

This involves considering a range of factors, including:

·       The benefit to the child of having a meaningful relationship with both parents;

·       The need to protect the child from physical or psychological harm;

·       The child’s views (depending on their age and maturity);

·       The nature of the child’s relationship with each parent; and

·       Each parent’s capacity to meet the child’s needs.

In cases where there is a conflict between maintaining a relationship and protecting the child from harm, safety will be given greater weight.

Is There a Presumption of 50/50 Care?

A common misconception is that the court starts with a presumption of equal time (50/50).

This is not the case.

There is a legal presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility – meaning both parents are involved in making major long-term decisions about the child (such as education, health, and religion).

However, this does not automatically mean equal time.

Only if equal shared parental responsibility applies will the court then consider whether:

·       Equal time is in the child’s best interests and reasonably practicable, or

·       If not, whether substantial and significant time is appropriate.

Each case turns on its own facts, including practical considerations such as distance between households, schooling, and the child’s routine.

What Does “Substantial and Significant Time” Mean?

Where equal time is not appropriate, the court may consider arrangements that allow the child to spend substantial and significant time with the other parent.

This can include:

·       Weekdays and weekends;

·       Holidays; and

·       Time that allows the parent to be involved in the child’s daily routine.

The focus is on ensuring the child maintains a meaningful relationship with both parents, where it is safe to do so.

What if There are Safety Concerns?

In matters involving family violence, risk, or safety concerns, the court will prioritise the protection of the child.

This may result in:

·       Limited time with one parent;

·       Supervised time; or

·       In some cases, no time.

The court takes these concerns seriously, and evidence of risk will significantly impact the outcome of parenting arrangements.

Every Family is Different

There is no “one size fits all” approach to parenting arrangements.

While a 50/50 arrangement may be appropriate for some families, it is not a default position. The court will consider what is practical, safe, and in the child’s best interests in each individual case.

Final Remarks

Understanding how parenting arrangements are determined can help reduce uncertainty during what is often a stressful time.

If you are navigating separation and are unsure about what arrangements may be appropriate for your children, or if you are involved in a dispute, obtaining legal advice early can assist you to understand your options and work toward a resolution that supports your child’s wellbeing.