Contents
Introduction.
Separation is one of life’s most stressful experiences, and when children are involved, the stakes are even higher. Parents often find themselves struggling with one fundamental question: What will happen to the children now? Determining parenting arrangements can be emotionally draining and legally complex.
Australian family law is built around one overriding principle, the best interests of the child. However, for parents navigating the uncertainty of separation, understanding what this means in practice can be challenging. This is why many parents seek clarity through legal guidance from experienced professionals who can explain their options and ensure decisions are made with the child’s well-being at the centre.
If you’re unsure how to move forward with parenting arrangements, consultParramatta Family Lawyers for clear, compassionate advice focused on protecting your child’s best interests.
The Foundation of Parenting Arrangements in Australian Family Law.
Parenting arrangements refer to the agreements or court orders that determine how children will be cared for when their parents separate. These arrangements can address where a child lives, how much time they spend with each parent, decisions about schooling and health, and even how holidays or birthdays will be shared.
The Legal Framework.
The Family Law Act 1975 (Cth) governs parenting arrangements across Australia. Section 60CA of the Act states that “the best interests of the child are the paramount consideration” in every parenting matter.
Section 60B sets out the aims of this framework, which include:
- Ensuring children have the benefit of both parents’ meaningful involvement in their lives, where safe and appropriate.
- Protecting children from harm, neglect, or abuse.
This means that every decision, whether made by agreement or imposed by a court, must focus on the child’s well-being, not the parents’ convenience.
What Does ‘Best Interests of the Child’ Really Mean in Family Law?
Section 60CC of the Act provides a list of factors that guide decisions about what is in a child’s “best interests.”
The primary considerations are:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm (including exposure to abuse, neglect, or family violence).
If these two factors conflict, the child’s safety is given priority.
The additional considerations include:
- The child’s views, depending on their age and maturity.
- The nature of the child’s relationship with each parent and extended family.
- Each parent’s willingness to support the child’s relationship with the other parent.
- Cultural considerations, especially for Aboriginal and Torres Strait Islander children.
- Any history of family violence or substance abuse.
The High Court case MRR v GR (2010) 240 CLR 461 made it clear that arrangements must be practical, not just theoretically beneficial. For example, equal time might seem fair, but if parents live far apart or conflict is high, it might not be realistic.
Parenting Plans vs. Parenting Orders.
Parents have two main ways to set out parenting arrangements:
Parenting Plans – These are written agreements between parents that set out arrangements for children. They can cover living arrangements, time spent with each parent, and how major decisions will be made. Parenting plans are flexible and not legally enforceable, but if a dispute ends up in court, they can still carry weight as evidence of what was previously agreed.
Parenting Orders – These are legally binding orders made by the Federal Circuit and Family Court of Australia (FCFCOA). Parenting orders can be made by consent (when both parents agree) or after a contested court hearing.
If a parent breaches a parenting order, serious consequences can follow, including fines or, in extreme cases, imprisonment for persistent breaches.
Many separating parents assume the law guarantees a 50/50 time split with children. This is a common misconception.
The Family Law Act starts with a presumption of equal shared parental responsibility, but this refers to decision-making, not the amount of time a child spends with each parent.
Equal shared parental responsibility means that major long-term decisions about the child’s life (like education or health) must be made jointly. It does not mean children must spend equal time with each parent.
The Full Court explained this distinction in Goode & Goode (2006) FLC 93-286, clarifying that if equal shared parental responsibility is ordered, the court must then consider equal time, but only if it is in the child’s best interests and reasonably practical. If not, the court considers “substantial and significant time” arrangements instead.
Why Family Dispute Resolution Comes Before Court Proceedings.
Parents cannot usually go straight to court for parenting orders. Except in urgent cases or where family violence or abuse is involved, the law requires parents to attempt Family Dispute Resolution (FDR) first.
This mediation process is intended to help parents reach an agreement without going to court. If agreement isn’t reached, the mediator issues a Section 60I certificate, which allows the parents to file a court application.
FDR is designed to be less adversarial, less costly, and less stressful for children. But if safety is a concern or conflict is too intense, the court may need to intervene.
How Courts Make Parenting Orders.
When the Federal Circuit and Family Court of Australia makes parenting orders, it works through a structured process guided by the Family Law Act.
The court examines the “best interests” considerations, assesses what arrangements are practical, and issues orders that cover living arrangements, decision-making responsibility, and time with each parent.
Orders can be highly detailed (for example, specifying school pick-up locations, holiday schedules, and rules for introducing new partners) or broader, depending on the situation.
Family Violence and Parenting Arrangements.
Family violence is a critical factor in parenting disputes. Section 4AB of the Family Law Act defines family violence broadly, including physical abuse, threats, coercion, emotional abuse, financial control, and exposing children to violence.
If there is evidence of violence or abuse, the court can:
- Remove the presumption of equal shared parental responsibility.
- Limit or supervise time between the child and the violent parent.
- In severe cases, prevent contact altogether.
In Mazorski v Albright [2007] FamCA 520, the court recognised the significant harm that exposure to conflict and violence can cause children, reinforcing that safety must always come first.
Practical Considerations for Parents.
Legal arrangements are only part of the story. Parents also need to manage day-to-day logistics, schooling, healthcare, extracurricular activities, and how the child’s emotional needs are supported.
Courts increasingly encourage solutions that minimise conflict. For example, parents may use shared calendars, parenting apps, or clear schedules to avoid misunderstandings.
Cultural and Community Considerations.
For Aboriginal and Torres Strait Islander children, the Family Law Act emphasises the importance of maintaining cultural ties and connection to family and community.
The case B & R & the Separate Representative (1995) FLC 92-636 highlighted that cultural continuity is an important factor when courts make decisions for Indigenous children.
Relocation and Interstate or Overseas Moves.
When one parent wants to relocate with the child, parenting disputes become particularly challenging.
In A v A: Relocation Approach (2000) FLC 93-035, the Full Court confirmed there is no presumption for or against relocation, the court only considers the child’s best interests.
Relocation cases often involve balancing the moving parent’s right to freedom of movement with the child’s right to a meaningful relationship with both parents.
Emotional and Practical Support.
Legal principles aside, separation is emotionally charged. Parents are encouraged to access counselling, mediation support, or co-parenting programs. Courts recognise that ongoing parental conflict is damaging to children and expect parents to shield them from disputes as much as possible.
This is also where professionals can help, by combining legal knowledge with a practical understanding of the human challenges that come with separation.
Lawyers and Independent Children’s Lawyers.
In complex or high-conflict situations, parents often engage lawyers to help draft parenting plans, negotiate consent orders, or present their case in court.
Sometimes, the court appoints an Independent Children’s Lawyer (ICL) under Section 68L of the Family Law Act. The ICL’s role is to provide an independent view of the child’s best interests, not to advocate for either parent.
Clarity, Compliance, and Variation of Orders.
Parenting arrangements should be clear. Vague agreements create conflict. Orders or plans should outline schedules, decision-making processes, and even methods for handling disputes.
If circumstances change significantly, such as a parent’s work schedule or the child’s needs, orders can be varied. However, the Family Court’s decision in Rice & Asplund (1979) FLC 90-725 set out that there must be a “significant change in circumstances” before orders are reconsidered, to prevent constant litigation.
Conclusion.
Parenting after separation is rarely simple. Between understanding legal obligations, navigating emotional upheaval, and prioritising the best interests of children, the process can feel overwhelming.
Australian family law provides a framework to guide parents, but every family is different, and what works for one may not work for another. Agreements reached through negotiation, mediation, or court intervention should always focus on clarity, cooperation, and the child’s well-being.
Parents don’t have to go through this process alone. Seeking guidance from professionals can provide the clarity and support needed to understand rights, meet obligations, and build parenting arrangements that truly serve the child’s best interests.
For tailored advice and support with parenting matters, consult Parramatta Family Lawyers to ensure your arrangements align with legal requirements and protect your child’s future.
