Information Centre · Family Law
Parenting Arrangements After Separation: What Happens to the Children?
How Australian family law approaches arrangements for children after separation — focused on the best interests of the child, for both married and de facto parents.
Key points
- Under section 60CA of the Family Law Act 1975 (Cth) the child's best interests are the paramount consideration; the section 60CC matters include safety, the child's views, developmental/psychological/emotional and cultural needs, the capacity of proposed carers and decision makers, the benefit of relationships where safe, and — for Aboriginal or Torres Strait Islander children — connection with family, community, country and language.
- From 6 May 2024 the presumption of equal shared parental responsibility was removed and there has never been an entitlement or requirement for equal time.
- Decision-making is dealt with by section 61CA (parents encouraged to consult on major long-term issues where safe, subject to orders) and section 61D (a parenting order may allocate sole or joint decision-making for all or specified major long-term issues); older "equal shared parental responsibility" reasoning under the former section 61DA does not apply.
- A parenting plan must meet section 63C; it is not itself enforceable as a parenting order and section 65DAB requires the Court to have regard to its terms when making a parenting order. Consent parenting orders require Court approval and are enforceable once made.
- Section 60I generally requires genuine effort at family dispute resolution and a section 60I certificate before commencing parenting proceedings, subject to statutory exceptions (including urgency, family violence, child abuse or the risk of them) assessed on the evidence.
- Family-violence orders interact with parenting orders under sections 60CG and 68P–68T; children's views are considered without a fixed age; final parenting orders may be varied only where section 65DAAA is satisfied, subject to its exceptions.
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For many parents, the most important question following separation is simple: what will happen to the children?
While the breakdown of a relationship can be emotionally challenging, Australian family law places the focus squarely on the best interests of the child. The law encourages parents to work together wherever possible to make arrangements that support the child's wellbeing, stability and ongoing relationship with both parents.
Importantly, parenting arrangements are separate from divorce proceedings. Parents do not need to be divorced before parenting arrangements can be discussed, negotiated or formalised. The same framework applies to both married and de facto parents. For a step-by-step guide to the divorce process itself, see our article on how to apply for divorce in Australia. For guidance on child support assessments and agreements, see our article on child support assessments and private agreements in Australia.
How Australian family law approaches parenting arrangements
Under section 60CA of the Family Law Act 1975 (Cth) the child's best interests are the paramount consideration in any parenting decision. From 6 May 2024, the presumption of equal shared parental responsibility was removed; there has never been an entitlement or requirement for equal time.
Section 60CC sets out the matters the Court must consider in determining what is in a child's best interests, including:
- safety, including safety from family violence, abuse and neglect;
- any views expressed by the child, weighed with maturity and understanding;
- the child's developmental, psychological, emotional and cultural needs;
- the capacity of each proposed carer or decision maker to meet those needs;
- the benefit to the child of relationships with parents and other significant persons, where safe;
- anything else that is relevant to the particular circumstances of the child; and
- for Aboriginal or Torres Strait Islander children, the additional matters the section requires the Court to consider, including the right to enjoy the child's culture and connection with family, community, country and language.
Decision-making and if parents can agree
Section 61CA encourages parents to consult with one another about major long-term issues concerning the child if it is safe to do so and subject to any orders in force. Section 61D permits a parenting order to allocate decision-making for all or specified major long-term issues, jointly or solely. Older "equal shared parental responsibility" reasoning based on the former section 61DA no longer applies.
Where parents agree, arrangements can be recorded in a parenting plan or formalised as consent orders. A parenting plan must meet the requirements of section 63C (a written agreement between the parents that deals with specified parenting matters, made free from threat, duress or coercion). A parenting plan is not itself enforceable as a parenting order, and section 65DAB requires the Court to have regard to the terms of the most recent parenting plan when making a parenting order. Consent parenting orders require the Court's approval and are enforceable once made. See our guide to Consent Orders.
If parents cannot agree
Section 60I of the Family Law Act 1975 (Cth) generally requires a person to make a genuine effort to resolve parenting matters through family dispute resolution and to file the resulting section 60I certificate before commencing parenting proceedings. The section provides statutory exceptions, including those relating to consent, urgency, family violence, child abuse or the risk of them, and other circumstances the section specifies. Whether an exception applies is a matter for the Court on the evidence.
When the Court becomes involved
If parents cannot reach agreement, the Court may make parenting orders dealing with matters such as with whom the child lives, the time the child spends with each parent and other people, allocation of decision-making for major long-term issues, communication and any other aspect of the child's care, welfare or development. In parenting proceedings the Court considers safety and risk, the section 60CC matters, and the interaction with any family-violence order under sections 60CG and 68P–68T. Existing final parenting orders may be varied only if section 65DAAA is satisfied, subject to the exceptions in that section.
Language: parental responsibility, not "custody"
The Family Law Act 1975 (Cth) no longer uses the term "custody". The Court speaks in terms of parenting arrangements, with whom the child lives, time spent with each parent, and parental responsibility. This reflects a focus on the child rather than on parental rights.
Putting Children First
Separation is rarely easy, but children generally benefit when parents can communicate respectfully and focus on practical solutions.
Obtaining legal advice early can help clarify your rights and responsibilities, reduce conflict and create arrangements that provide certainty for both parents and children.
If you require advice regarding parenting arrangements, parental responsibility, family dispute resolution or children's matters following separation, contact Parke Lawyers for assistance.
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Speak with Parke Lawyers
Our family law team can advise on parenting arrangements, parental responsibility, family dispute resolution, consent orders and parenting orders — for both married and de facto parents.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.