Who will my children live with and what time will they spend with each parent?

This article covers some laws on parenting arrangements, how the court makes a decision, the difference between equal time and or substantial and significant time, what the best interests of the child means, what reasonably practical means and how agreements are documented.

There are many different living arrangements for children once their parents have separated. Where parents can get along, they may be able to agree on living arrangements for their children. However, it is common for parents to have different views on what living arrangements will suit their children best. When this happens, it can be helpful to talk to child development professionals and get some information on the topic and to talk to an experienced family lawyer to get some advice. We can help you to set out your parenting arrangements in a Parenting Plan or Court Orders.

Below you can find information on how the law relates to parenting arrangements.

The law is important to understand when making parenting arrangements, but it is also helpful to think about your children and their unique personalities, developmental stages and ages. As children grow up, the parenting arrangements might grow and change with them.

How does the court make decisions about my children?

The court will be guided by Part 7 of the Family Law Act 1975 when making decisions about your children.  The objects are to ensure that the best interests of your children are met by:

• ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child,
• protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence,
• ensuring that children receive adequate and proper parenting to help them achieve their full potential, and
• ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

• children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together,
• children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives),
• parents jointly share duties and responsibilities concerning the care welfare and development of their children,
• parents should agree about the future parenting of their children, and
• children have the right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Who makes the parenting decisions now we are separated?

Each parent has parental responsibility for their children under 18 years of age. Parental responsibility is the powers, duties and responsibilities which parents have at law in relation to their children.

There is a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility for them. Shared parental responsibility is not the same as equal time. This is about both parents being equally responsible to make the major long-term decisions for their children. It includes (but is not limited to) matters relating to your child’s:

• education
• religious and cultural upbringing
• health
• name
• living arrangements so far as changes to those arrangements may impact on the time the child spends with a parent.

The presumption of equal shared parental responsibility will not apply, where the court is satisfied there was evidence to suggest it was not in the child’s best interests, for instance where there is family violence or if a child was being abused.

What is equal time or substantial and significant time?

When a child lives primarily with one parent that means they will spend most of the time in that parent’s care. They may spend time with the other parent on alternate weekends or on overnights at other times during the weeks.

Equal time is where children spend the same amount of time with each parent. This can be done in numerous arrangements. A common equal time arrangement is where children live with their parents in a week about arrangement.

Where children spend substantial and significant time with a parent, this means:

• time including days that fall on weekends and holidays and days which do not fall on these days,
• time which allows the parent to be involved in the child’s daily routine and days of significance to the child (such as birthdays), and
• time which allows the child to be involved in days of significance to the parent.

How does the court make decisions on where children live?

The legal framework to determine living arrangements for children can be complicated to understand.

If the presumption for equal parental responsibility applies, then the court must go through the following steps:

• STEP 1: the court considers whether the child living in an equal shared care arrangement is in the child’s best interests and ‘reasonably practicable’ and:
  • if so make an order for equal shared care, or
  • if not the court goes to step 2.
• STEP 2: the court considers whether the child spending substantial and significant time is in the child’s best interests and ‘reasonably practicable’ and
  • if so: make an order for substantial and significant time, or
  • If not: go to Step 3.
• STEP 3: if the court decides it is not in the child’s best interests to make orders for equal shared care or substantial and significant time, then the court will consider making such orders having regard to the best interests of the child.

Therefore, children will only live in an equal shared care arrangement where parents can agree on it or where the court finds that it is in the best interests of the child and is the most suitable arrangement.  Each case will be considered on its own facts and circumstances. There are no automatic rules about living arrangements.

What does ‘best interests of the child’ mean?

The court must have regard to the best interests of the child as the paramount consideration when making determinations about your children.

The factors the court will have regard to are contained in s 60CC of the Family Law Act 1975. The most important factors are the primary considerations, and then there is a longer list of additional considerations.

Primary considerations

• The benefit to the child of having a meaningful relationship with both of the child’s parents, and
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

If these primary considerations conflict, the need to protect the child is the more important consideration.

Additional considerations

Some of the additional considerations are:

• any views expressed by the Child
• the nature of the relationship of the Child with each of the Child’s parents and other persons.
• the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in decision making relating to the child and spending time with and communicating with the child.
• the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
• the likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from the parents or other person who the child has been living.
• the practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis.
• the capacity to provide for the needs (including emotional and intellectual) of the Child, by each of the parents and any other person.
• the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents.
• if the Child is an Aboriginal Child or a Torres Strait Islander Child, the right to enjoy their culture and any impact a parenting order will have on that right.
• the attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents.
• any family violence involving the Child or a member of the Child’s family.
• if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order.
• whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child.
• any other fact or circumstance that the court thinks is relevant.

What does ‘reasonably practicable’ mean?

When determining whether an arrangement for equal or substantial and significant time may be reasonably practicable, the court must have regard to factors such as:

• How far apart the parents live from each other,
• The parents current and future capacity to implement an agreement for the child spending equal time, or substantial and significant time, with each of the parents,
• The parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind,
• The impact that an arrangement of that kind would have on the child, and
• Other matters the court considers relevant.

The court will take a firm stance against a parent who makes decisions for their children without regard and involvement of the other parent in the decision making.

How do we document our agreement?

If you are able to reach an agreement for parenting arrangements, you can do so with either a Parenting Plan or Court Orders.

A Parenting Plan is a signed and dated document setting out the parenting arrangements.

A Court Order is filed in the court and needs to be approved by the court, it is also legally binding on all parties and enforceable.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

This article was originally published on 21 December 2020. Last updated on 09 April 2022.