Family Law
Parenting arrangements and the best interests of the child
Connor Barham · Principal Solicitor
How parenting arrangements are decided after separation, the best interests test, and the effect of the 2024 family law changes.
Published
When parents separate, the hardest questions are usually about the children. Where will they live, how much time will they spend with each parent, and who decides the big things. This guide explains how parenting arrangements work in Australia and what the recent law changes mean.
The guiding principle: the child's best interests
Every decision about children under family law is guided by one principle, the best interests of the child. This is not about the rights of the parents. It is about what arrangement will serve the child.
This is the point we find parents most need to hear, kindly but clearly. The law does not start from what each parent is entitled to. It starts from what is best for the child, and the sooner both parents can frame things that way, the better the outcome usually is, for the children and for them.
What changed on 6 May 2024
The family law around parenting changed significantly on 6 May 2024. The main change was the removal of the presumption of equal shared parental responsibility. Previously the law started from a presumption that parents should share major long-term decision-making, which many people wrongly took to mean equal time. That presumption is gone.
The law now works through a streamlined set of factors to decide what is in a child's best interests, and includes provisions on how separated parents make decisions about major long-term issues. One thing has not changed, and is worth stating plainly. The law has never required children to spend equal time with each parent. Equal time is one possible arrangement, not a starting right.
Parental responsibility and decision-making
Parental responsibility is about making the major long-term decisions for a child, such as their schooling, health, and religion. It is separate from how much time a child spends with each parent. After the changes, the arrangements for major long-term decisions are decided by reference to the child's best interests, rather than starting from a presumption.
In practice, parents who can communicate are encouraged to consult on major long-term issues. Where that is not safe or workable, the arrangement can reflect that.
How arrangements are made
Most parenting arrangements are not decided by a court. They are agreed between the parents, and the law encourages that. The main ways to formalise an arrangement are a parenting plan, which is a written agreement that is not legally enforceable but carries weight, and consent orders, which are approved by the court and are legally binding. If parents cannot agree, and after they have attempted family dispute resolution where required, a court can decide.
Our strong preference, where it is safe and possible, is to help parents reach a workable agreement rather than fight it out. Litigated parenting disputes are slow, expensive, and hard on children. There is a separate article in this series comparing consent orders and parenting plans.
When agreement is not safe or possible
Agreement is not always the right path. Where there is family violence, or a real risk to a child, safety comes first, and the arrangements and the process need to reflect that. The law treats these matters seriously, and so do we. If this is your situation, get advice early, and if anyone is in immediate danger, call 000.
How we help
We help separated parents reach and formalise parenting arrangements that work and that put the children first, whether through a parenting plan or consent orders, and we act where a matter has to go to court. We also manage the overlap with property settlement and with any family violence or AVO issues, so the whole situation is handled together. The earlier we are involved, the more options there usually are.
Frequently asked questions
Does the law give each parent equal time? No. The law has never required equal time. Arrangements are decided by the child's best interests, and equal time is only one possibility.
What changed in May 2024? The presumption of equal shared parental responsibility was removed, and the best interests factors were streamlined, from 6 May 2024.
What is the difference between a parenting plan and consent orders? A parenting plan is a written agreement that is not enforceable. Consent orders are approved by the court and are legally binding.
Do we have to go to court? Usually not. Most arrangements are agreed, often with the help of family dispute resolution. Court is for when agreement is not possible or not safe.
Keep reading
This article contains general information only and is not legal advice. This article refers to family violence. If you are in immediate danger, call 000. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.
This article contains general information only and does not take your circumstances into account. Please obtain legal advice about your own situation.