Parenting Arrangements After Separation: 

How the Court Determines Time with Each Parent

Following separation, one of the most significant and sensitive issues for families is determining how children will spend time with each parent. Parenting arrangements are designed to protect the best interests of the child above all else.

The relevant provisions are contained within the Family Law Act 1975 (Cth) (“the Act”), which sets out both the guiding principles and the factors the Court must consider when making parenting orders.

The Paramount Consideration: Best Interests of the Child

Under section 60CA of the Act, the Court must regard the best interests of the child as the paramount consideration when making any parenting order.

This principle underpins all decisions relating to where a child lives, how much time they spend with each parent, and how parental responsibility is allocated.

Primary Considerations (s 60CC)

In determining what is in a child’s best interests, the Court considers a range of factors set out in section 60CC, including two primary considerations:

• 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

Where these considerations are in conflict, greater weight is given to the need to protect the child from harm.

Additional Considerations

The Court also evaluates a broader set of factors, including:

• The child’s views (depending on age and maturity)

• The nature of the child’s relationship with each parent

• Each parent’s capacity to provide for the child’s needs

• The practical difficulty and expense of a child spending time with a parent

• The extent to which each parent has fulfilled their parental responsibilities

• Any history of family violence or abuse

These considerations allow the Court to assess each family’s unique circumstances in a nuanced and fact-specific way.

Parental Responsibility (s 61DAA)

The Court must make a determination whether it is in the best interests of the child if the parents are required to consult and agree on long-term decisions relating to the child. 

Long Term decisions relate to major issues such as education, health, religion and any potential changes that make it more difficult for the child to spend time with the other parent. 

The Court is generally loath to make Joint Decision-Making Responsibility where there are significant concerns around communication, abuse or family violence. 

Time with Each Parent: Not Automatically Equal

A common misconception is that parenting arrangements default to a 50/50 time split. In reality, the Court does not begin with any presumption of equal time.

The Court must consider section 60CC as outlined above prior to making a determination of where the child should live, and further what time the child spends with each parent. 

Ultimately, the arrangement must be tailored to the child’s needs, not the parents’ preferences.

Practical Considerations

In assessing what is “reasonably practicable,” the Court considers:

• The distance between the parents’ homes

• The parents’ capacity to implement arrangements

• The impact on the child’s stability and routine

• The ability of parents to communicate and cooperate

High levels of conflict or poor communication may make equal time arrangements impractical.

Parenting Plans and Court Orders

Parents are encouraged to reach agreement where possible. Parenting arrangements can be documented in:

• Parenting Plans (informal and not legally enforceable), or

• Parenting Orders (legally binding and enforceable)

Parenting Orders may be made by consent or determined by the Court if agreement cannot be reached.

Matters are heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over family law disputes.

Family Violence and Safety

Allegations or findings of family violence are treated with significant weight. The Court is required to prioritise the child’s safety, and this may result in:

• Supervised time with a parent

• Limited or no contact in serious cases

• Conditions designed to ensure safe interactions

  
  
  

Conclusion

Parenting arrangements after separation are determined through a careful balancing of legal principles and practical realities, with the child’s best interests as the central focus. There is no one-size-fits-all outcome - each decision is shaped by the child’s needs, the family dynamic, and the capacity of each parent to provide a safe and supportive environment.

For parents navigating separation, obtaining legal advice and focusing on child-centred outcomes can assist in reaching arrangements that support both stability and ongoing parental relationships.

Need advice about parenting arrangements after separation? Palm Law Group offers a free 30-minute consultation and clear fixed-fee guidance tailored to your family’s situation.