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Information Centre · Family Law

Parenting Arrangements After Separation in Australia

A practical first-step guide for parents working out arrangements for their children in the weeks after separation.

By Parke Lawyers Editorial TeamReviewed by JULIAN McINTYRE, AssociateLast reviewed
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Key points

  • The child's best interests are the paramount consideration under section 60CA; the benefit of relationships with parents and other significant people is weighed only where it is safe, and safety from family violence, abuse or neglect is never subordinated to contact.
  • The framework applies whether the parents were married, de facto, never lived together or otherwise separated, and section 65C allows an application by either or both parents, the child, a grandparent or another person concerned with the child's care, welfare or development.
  • There is no presumption of, or entitlement to, equal time and no standard schedule; arrangements turn on the individual child's safety, needs and practical circumstances.
  • Under section 61C each parent ordinarily has parental responsibility subject to orders; section 61CA encourages consultation on major long-term issues where safe, section 61D allows an order allocating sole or joint decision-making, section 61DAA requires genuine effort towards a joint decision where joint decision-making is ordered, and section 61DAB means day-to-day issues need not be consulted on absent a contrary order.
  • Arrangements may be informal (not enforceable as orders), recorded in a section 63C parenting plan (written, made between the parents, signed, dated, dealing with parenting matters and free from threat, duress or coercion, and still not enforceable as a parenting order), or made as consent orders, which require Court approval and are enforceable once made.
  • Section 65DAB requires the Court to have regard to the terms of the most recent parenting plan when making a parenting order only if it is in the child's best interests to do so.
  • Section 60I generally requires an applicant to file an appropriate family dispute resolution certificate before commencing parenting proceedings, subject to statutory exceptions including urgency, consent orders, family violence, child abuse or the risk of either; the available certificates include certificates recording that a party did not make a genuine effort or that the practitioner considered FDR inappropriate, and whether an exception applies is assessed on the evidence rather than self-declared.
  • No age fixes when a child chooses; weight depends on maturity and understanding, section 60CE means a child need not express a view, and views are placed before the Court through appropriate evidence such as a family report or an independent children's lawyer.
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In the first weeks after separation, most parents are trying to answer a very practical question: where will the children sleep tonight, next weekend and next term?

Australian family law does not answer that question with a formula. Under the Family Law Act 1975 (Cth) the child's best interests are the paramount consideration. One of the matters the law takes into account is the benefit to the child of relationships with their parents and other people significant to them — but only where it is safe to do so. Safety from family violence, abuse, neglect and other harm is never subordinated to maintaining contact.

Parenting arrangements are also separate from divorce. Parents do not need to be divorced, or even to have started a divorce application, before arrangements for children can be discussed, recorded or formalised. For the divorce process itself, see how to apply for divorce in Australia. Financial support for children is dealt with separately again through the child support system — see child support assessments and agreements.

Immediate Priorities After Separation

The early period is about stability rather than final answers. In practice, the first priorities are usually these.

  • Safety. If anyone is at immediate risk, contact police on 000. Safety concerns shape everything that follows and should be raised with a lawyer early.
  • Continuity. Where it is safe and practical, keep school or childcare, medical care, medication routines, sport and familiar contact with extended family running as normally as possible.
  • Workable communication. Agree a single method of communication between the adults — often written, brief and limited to the children. Where there are safety concerns, use a third party or a lawyer.
  • An interim arrangement. A short-term arrangement for the next few weeks is usually easier to agree than a permanent one, and it buys time to obtain advice.
  • Keeping children out of adult conflict. Children should not be asked to carry messages, choose sides, or hear one parent's view of the other.

Writing down what has been agreed for the short term is sensible, but be clear about what that record is. An exchange of text messages is evidence of what the parents were doing at the time; it is not a court order and does not bind either parent in the way an order does.

Who the Framework Applies To

The Part VII framework is about children, not about the adults' relationship status. It applies whether the parents were married, in a de facto relationship, never lived together, or separated in any other circumstances.

Nor is it limited to parents. Under section 65C, an application for a parenting order may be made by either or both parents, by the child, by a grandparent, or by any other person concerned with the care, welfare or development of the child. Grandparents and other carers who have a real role in a child's life are therefore not spectators in the process.

What Parenting Arrangements Can Cover

Arrangements can be as detailed or as flexible as the family needs. Commonly they address:

  • where the child lives, and the time the child spends with each parent or other significant person;
  • changeovers — where, when and how, and who does the transport;
  • telephone, video and other communication between visits;
  • school terms, weekends, school holidays, birthdays and special occasions;
  • health, education and extracurricular matters, including who attends appointments;
  • passports and travel, including any overseas travel;
  • how the adults communicate with each other and share information; and
  • any safety measures, such as supervision or a neutral changeover location.

There is no correct template: arrangements that suit a toddler rarely suit a teenager.

The Best-Interests Foundation

Section 60CA requires the Court to regard the child's best interests as the paramount consideration when deciding whether to make a particular parenting order. Section 60CC sets out what the Court must consider, including safety, any views expressed by the child, the child's developmental, psychological, emotional and cultural needs, the capacity of each proposed carer to meet those needs, the benefit of relationships with parents and other significant people where safe, and anything else relevant to the particular child. For Aboriginal and Torres Strait Islander children, the section requires additional consideration of the child's right to enjoy their culture and maintain connection with family, community, country and language.

Those matters are also a useful checklist for parents negotiating between themselves. For a detailed treatment, see our article on the best interests of the child.

Parental Responsibility and Day-to-Day Decisions

Under section 61C, each parent ordinarily has parental responsibility for a child under 18, subject to any court order. Parental responsibility concerns duties, powers and responsibilities in relation to the child — it does not, of itself, create any right to equal time.

  • Section 61CA encourages parents to consult one another about major long-term issues where it is safe to do so, subject to any orders in force.
  • Section 61D allows a parenting order to allocate decision-making for all, or specified, major long-term issues — jointly or solely.
  • Section 61DAA provides that where an order requires joint decision-making, those bound must consult one another and make a genuine effort to reach a joint decision.
  • Section 61DAB provides that, absent a contrary order, consultation is not required about issues that are not major long-term issues while the child is spending time with a person.

In everyday terms: schooling, significant medical treatment, religion and the child's name are the kind of matters treated as major long-term issues, while bedtimes, meals and weekend activities are for the parent caring for the child at the time. A move is not automatically a major long-term issue: the statutory concept is a change to the child's living arrangements that makes it significantly more difficult for the child to spend time with a parent. The former presumption of equal shared parental responsibility was removed on 6 May 2024 and reasoning based on it no longer applies.

No Presumption of Equal Time

There is no presumption of equal time, no entitlement to it and no standard schedule. Equal or substantial shared care works well for some families and poorly for others, depending on the child's age and temperament, the distance between homes, work patterns, schooling, the level of conflict and — above all — safety. The right question is not what is fair between the adults, but what actually works for this child.

Three Ways Arrangements May Operate

Most families use one of three approaches, and many move between them over time.

  • An informal arrangement. Flexible, private and free, but not enforceable as a parenting order. It suits parents who communicate well and can adapt as circumstances change.
  • A parenting plan. Under section 63C, a parenting plan must be in writing, made between the child's parents, signed and dated, and deal with one or more parenting matters. It must be made free from threat, duress or coercion. It is not enforceable as a parenting order, but it records the agreement clearly and, when the Court later makes a parenting order, section 65DAB requires the Court to have regard to the terms of the most recent parenting plan if it is in the child's best interests to do so.
  • Consent orders. An agreement can be filed for approval as consent orders. The Court must be satisfied the orders are in the child's best interests. Once made, they are enforceable. See our guide to consent orders in family law for the procedure.

Family Dispute Resolution

Where parents cannot agree between themselves, family dispute resolution is usually the next step. Section 60I generally requires an applicant to file an appropriate family dispute resolution certificate from an accredited practitioner before commencing parenting proceedings, subject to statutory exceptions including urgency, consent orders, family violence, child abuse or the risk of either.

The available certificates include certificates recording that a party did not make a genuine effort or that the practitioner considered family dispute resolution inappropriate, so making a genuine effort is not itself an absolute precondition in every case. The exceptions are assessed by the Court on the evidence — a parent cannot simply declare that one applies. Family dispute resolution can also be unsuitable where there is a power imbalance or a history of violence, and that should be raised with the practitioner and with a lawyer.

Safety, Family Violence and Supervised Arrangements

Where family violence, abuse or neglect is a feature, the arrangement must be built around safety first. That may mean supervised time, changeovers at a neutral or public location, changeover through a third party, no direct contact between the adults, or the use of a children's contact service. Existing family-violence orders and parenting arrangements interact, and both need to be considered together rather than in isolation.

For how safety concerns are dealt with in parenting matters, see family violence and parenting orders. Victorian intervention-order procedure is covered separately in our article on family violence intervention orders in Victoria.

When Agreement Is Not Possible

If negotiation and family dispute resolution do not resolve matters, an application for parenting orders can be made. The Court may make interim orders to govern arrangements while the case proceeds and final orders at the end. Cases are decided on evidence — affidavits, subpoenaed material, and often a family report prepared by a court child expert — rather than on assertion. Urgent applications are possible where safety or an imminent event requires it.

This overview is deliberately short. For the process, the evidence and what to expect in litigation, see our detailed guide to applying for parenting orders. Where a child's own perspective needs independent representation, see independent children's lawyers.

Relocation, Non-Return and Urgent Situations

Three situations call for advice before acting rather than afterwards. First, a move matters most where it is a change to the child's living arrangements that makes it significantly more difficult for the child to spend time with a parent; do not move a child to another town, state or country unilaterally where that would disrupt existing arrangements or breach an order — obtain advice and, if necessary, consent or an order. Second, if a child is not returned as agreed, the situation may need urgent intervention and, in some cases, a recovery order. Third, where there is a real risk of a child being taken overseas, passport and airport measures may be sought urgently.

Each of these is covered in detail elsewhere: see relocating with children after separation and recovery orders.

Children's Views

There is no age at which a child chooses where they live. A child's views are one of the matters considered, and the weight given to them depends on the circumstances and on the child's maturity and understanding. Section 60CE makes clear that a child is not required to express a view.

Where views are relevant, they are placed before the Court through appropriate evidence — commonly a family report, or through an independent children's lawyer where one is appointed. Parents should not question a child about their preferences, ask them to report on the other household, or involve them in adult decisions.

Existing Orders: Compliance and Changed Circumstances

Three different questions are often confused. Compliance is the obligation to do what the orders say, including taking reasonable steps to ensure the orders take effect. Contravention is what happens when a person does not comply without reasonable excuse — see contravention of parenting orders. Reconsideration is different again: under section 65DAAA the Court generally must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances and is satisfied that reconsideration would be in the child's best interests. Section 65DAAA(3) allows the Court to reconsider the orders without first applying that threshold where all parties consent.

Parents who both agree that orders no longer suit the children can record the new arrangements in a parenting plan or apply for fresh consent orders. Under section 64D, a parenting order is taken to include a provision that it is subject to a parenting plan entered into later by the child's parents and agreed to in writing by any other person (other than the child) to whom the order applies. Under section 64D(2), the Court may in exceptional circumstances provide that the order, or a specified provision of it, may be varied only by a later court order and not by a parenting plan. A parenting plan is not itself enforceable as a parenting order, so take advice before relying on a plan that differs from orders already in force. Fresh consent orders give the new arrangements enforceable replacement terms.

Practical Checklist

  • Address safety first, and seek help if anyone is at risk.
  • Agree a short-term arrangement for the coming weeks and put it in writing.
  • Keep school, childcare, health care and routines running where you can.
  • Choose one calm, child-focused method of communication between the adults.
  • Keep a simple diary of the arrangements that are actually happening.
  • Tell the school and treating practitioners who is picking up and who to contact.
  • Locate passports, Medicare details, birth certificates and immunisation records.
  • Consider family dispute resolution early rather than after positions harden.
  • Obtain advice before making a significant change, not after it.
  • Deal with child support separately from time arrangements.

When Urgent Legal Advice Is Required

Some situations do not allow time for negotiation. Obtain advice immediately where there is an immediate risk to a child's safety; where a child has been removed or is not returned; where interstate or overseas relocation is threatened or proposed; where there is a passport or overseas travel concern; where existing orders are being breached; or where the parents cannot agree about an urgent medical or school decision.

If you need advice about arrangements for your children after separation — whether that means negotiating a parenting plan, applying for consent orders, or responding to an urgent situation — contact Parke Lawyers.

Frequently Asked Questions

Do children automatically spend equal time with each parent?

No. There is no presumption of, or entitlement to, equal time, and no standard schedule that applies to every family. Under section 60CA of the Family Law Act 1975 (Cth) the Court must regard the child's best interests as the paramount consideration when deciding whether to make a particular parenting order, and arrangements depend on the individual child's safety, needs, age, schooling and the practical circumstances of both households.

Do we need court orders if we already agree?

Not necessarily. Many separated parents operate under an informal arrangement or a written parenting plan and never go to court. Orders become relevant where certainty or enforceability matters, where there is a history of arrangements breaking down, or where a third party such as a school, passport office or overseas authority needs formal documentation.

What is the difference between an informal arrangement, a parenting plan and consent orders?

An informal arrangement is flexible but is not enforceable as a parenting order. A parenting plan under section 63C is a written, signed and dated agreement between the parents, made free from threat, duress or coercion; it is also not enforceable as a parenting order. Consent orders are approved by the Court, must be in the child's best interests, and are enforceable once made.

Is a parenting plan enforceable?

Not as a parenting order. A parenting plan records what the parents have agreed and is often persuasive in practice, and when the Court later makes a parenting order it must have regard to the terms of the most recent parenting plan if it is in the child's best interests to do so. If enforceability is the objective, consent orders are the usual pathway.

Who makes major decisions about the children after separation?

Under section 61C each parent ordinarily has parental responsibility, subject to any court order. Section 61CA encourages parents to consult one another about major long-term issues where it is safe to do so. A parenting order under section 61D may allocate decision-making for all or specified major long-term issues, jointly or solely, and where joint decision-making is ordered, section 61DAA requires consultation and a genuine effort to reach a joint decision.

At what age can a child choose where they live?

There is no age at which a child decides. A child's views are one of the matters the Court considers, and the weight given to them depends on the circumstances and the child's maturity and understanding. Section 60CE means a child is not required to express a view. Views are usually placed before the Court through a family report or an independent children's lawyer rather than by the child speaking to a judge.

Do I need family dispute resolution before applying to court?

Usually yes. Section 60I generally requires an applicant to file an appropriate family dispute resolution certificate before commencing parenting proceedings, subject to statutory exceptions including urgency, consent orders, family violence, child abuse or the risk of either. The available certificates include certificates recording that a party did not make a genuine effort or that the practitioner considered family dispute resolution inappropriate, so making a genuine effort is not itself an absolute precondition in every case. Whether an exception applies is assessed by the Court on the evidence and is not simply a matter of self-declaration.

What if there is family violence or an urgent safety risk?

Safety comes first. If anyone is in immediate danger, contact police on 000. The child's best interests are the paramount consideration, and safety is an express mandatory consideration under section 60CC that appears first in the statutory list: the Court must consider what arrangements would promote the safety of the child and each person who has care of the child, including safety from family violence, abuse, neglect or other harm. Arrangements may involve supervised time, safe changeover arrangements or a children's contact service. Obtain urgent legal advice rather than relying on an informal arrangement.

Can grandparents or other carers apply for parenting orders?

Yes. Section 65C permits an application by either or both parents, the child, a grandparent, or any other person concerned with the care, welfare or development of the child. The same best-interests framework applies to the application.

What if existing arrangements no longer work?

If the arrangement is informal or recorded in a parenting plan, the parents can agree to change it. If final parenting orders are in force, they continue to operate, although under section 64D a parenting order is taken to include a provision that it is subject to a parenting plan entered into later by the child's parents and agreed to in writing by any other person (other than the child) to whom the order applies; under section 64D(2) the Court may in exceptional circumstances provide that the order, or a specified provision of it, may be varied only by a later court order and not by a parenting plan. A parenting plan is not itself enforceable as a parenting order, so get advice before relying on one that differs from existing orders, and consider fresh consent orders for enforceable replacement terms. Under section 65DAAA the Court generally must not reconsider final parenting orders unless it has considered whether there has been a significant change of circumstances and is satisfied that reconsideration would be in the child's best interests; under section 65DAAA(3) the Court may reconsider the orders without first applying that threshold where all parties consent.

Sources and Further Reading

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This article is general information about parenting arrangements under Australian family law. It is not legal advice. Please obtain advice tailored to your family's circumstances before making or changing arrangements for your children.