When parents separate, the main question is often simple but difficult: what happens with the children?
In Australia, the Court does not start with the rights of each parent. The Federal Circuit and Family Court of Australia focuses on what is in the best interests of the child. That is the central issue. Not what feels equal. Not what feels fair to the adults.
The Law After May 2024
On 6 May 2024, important changes to the Family Law Act 1975 came into effect.
One major change is that there is no longer a presumption of equal shared parental responsibility. There has also never been a rule that children must spend equal time with each parent.
The Court looks at what arrangement is safe, practical and best for the child.
What the Court Considers
The Court considers several key issues.
Safety is usually the most important practical concern. The Court looks at whether the proposed arrangements protect the child, and the people caring for the child, from family violence, abuse, neglect or other harm.
The Court may consider the child’s views, depending on the child’s age, maturity and circumstances. This does not mean the child decides the case. It means the child’s voice may be considered as part of the evidence.
The Court also looks at the child’s developmental, emotional, psychological and cultural needs. This can include schooling, health, routine, stability, identity and emotional wellbeing.
The Court then considers each parent’s ability to meet those needs. Love for a child is important, but the Court still needs to assess whether each parent can provide safe, stable and appropriate care.
The Court may also consider the benefit of the child having a relationship with both parents and other important people, such as siblings, grandparents and extended family members, but only where those relationships are safe.
For Aboriginal and Torres Strait Islander children, the Court must also consider the child’s connection with culture, community and Country.
Parental Responsibility and Time Are Different
Parental responsibility means decision making for major long term issues. This usually includes education, health, religion, culture and major changes to living arrangements.
Time is different. Time is about when the child lives with or spends time with each parent.
This distinction matters. A parent may spend substantial time with a child but not have equal decision making authority. In other cases, parents may share decision making, but the child may live mainly with one parent because of school, distance, routine or safety concerns.
The Court does not use a formula. It looks at the child’s real life.
Equal Time Is Not Automatic
Equal time is often misunderstood.
There is no automatic right to equal time or a week about arrangement. The Court considers whether the arrangement is in the child’s best interests and whether it is reasonably practical.
This may involve looking at the child’s age, school location, travel time, each parent’s work commitments, the parents’ communication, safety concerns and the level of conflict.
For some families, equal or substantial time may work well. For others, it may create instability, stress or risk for the child.
When Court Becomes Involved
In most parenting matters, parents must attempt Family Dispute Resolution before filing in Court, unless an exemption applies. Exemptions may apply where there is family violence, urgency or risk.
If the matter goes to Court, safety is considered early. The Court may use risk screening processes to identify matters involving family violence or other safety concerns.
In some cases, the Court may rely on expert evidence, such as a family report. In more serious or complex matters, an Independent Children’s Lawyer may be appointed to assist the Court by representing the child’s best interests.
The Main Point
A strong parenting case is not built around attacking the other parent or demanding equal time.
It is built around evidence.
The Court wants to understand what arrangement will keep the child safe, support the child’s development, maintain important relationships where appropriate and provide stability.
Parenting law in Australia is child focused. The Court is not there to reward one parent or punish the other. It is there to make orders that protect the child’s safety, stability and wellbeing.
This is not legal advice and should not be relied as such.