What are your rights as a parent after separation? We answer common questions about parenting arrangements, 50/50 care, parental responsibility, mediation, child support and the best interests of children under the current Family Law Act.
Separation raises a lot of practical questions about children. Who will they live with? How much time will they spend with each parent? Who makes decisions about school and medical treatment? Does parenting have to be 50/50? And who pays child support?
Australian family law changed significantly in May 2024. Some terminology that was commonly used before those changes, including the presumption of “equal shared parental responsibility”, no longer reflects the current law.
Here are some of the questions we are most often asked by parents after separation.
It is better to think about this question in terms of the child’s best interests rather than a parent’s entitlement to a particular amount of time.
There is no automatic rule that a parent is entitled to see a child for a particular number of days or nights.
If the Court is asked to make parenting orders, the child’s best interests are the paramount consideration.
Under section 60CC of the Family Law Act 1975 (Cth), the Court considers matters including:
The Court must also consider any history of family violence, abuse or neglect and relevant family violence orders.
This is an important change from the way the legislation operated before May 2024. The Act no longer frames the test around a child having a “meaningful relationship” with both parents and then separately requiring the Court to give greater weight to protection from harm.
The current legislation expressly incorporates safety into the best-interests assessment.
There is no single parenting arrangement that is automatically considered best for every child.
The Court looks at the circumstances of the particular child and family.
For one family, substantial time with each parent may work very well. For another, the child's age, developmental needs, geographical distance between the parents, family violence, work arrangements or other circumstances may mean a different arrangement is appropriate.
The focus is the child, rather than what either parent considers to be “fair”.
Most separated parents do not need a judge to decide these issues. Parents can reach their own arrangements privately, through negotiation or with the assistance of a Family Dispute Resolution practitioner.
If agreement cannot be reached and proceedings become necessary, the Court applies the considerations in section 60CC when determining what parenting orders are in the child's best interests.
There are also specific additional considerations where the child is Aboriginal or Torres Strait Islander.
This is one of the most important changes parents need to know about.
There is no longer a presumption of equal shared parental responsibility under the Family Law Act.
The former presumption was removed from 6 May 2024.
This does not mean that one parent automatically makes all decisions.
Under the current law, each parent ordinarily has parental responsibility for a child under 18, subject to any parenting orders.
Parents are also encouraged, where it is safe to do so and subject to any court orders, to consult each other about major long-term issues affecting their child and to have regard to the child's best interests.
If the Court makes an order for joint decision-making about major long-term issues, the people covered by that order must consult each other and make a genuine effort to reach a joint decision.
The Court can instead allocate sole decision-making responsibility for some or all major long-term issues where that is appropriate.
Major long-term issues are decisions that have a significant and long-term effect on a child's care, welfare and development.
They can include matters such as:
This is different from ordinary day-to-day parenting.
If a child is spending time with a parent under parenting orders, that parent will generally not have to consult the other parent about ordinary decisions such as what the child eats or wears, unless the orders provide otherwise.
No.
Decision-making responsibility and the amount of time a child spends with each parent are separate issues.
There is no presumption that children should spend equal time with each parent.
There is also no legal starting point of 50/50 care.
The Court considers what arrangements are in the particular child's best interests.
In some families that may result in approximately equal time. In others, the child may live primarily with one parent and spend substantial time with the other. Different arrangements may also be appropriate for different children within the same family.
The terminology “shared custody” is commonly used in conversation, but it is not the terminology used by the Family Law Act.
Yes.
A parenting order can provide for joint or sole decision-making about all major long-term issues or about particular issues.
For example, the Court could make orders dealing specifically with responsibility for medical or educational decisions.
Whether joint decision-making is appropriate depends upon the circumstances of the family.
Safety is an important consideration. So too is whether the parents can practically communicate and make decisions concerning their child.
The old test should not be described as a “rebuttal” of the presumption of equal shared parental responsibility. That presumption no longer exists.
Not necessarily.
Parents can make informal arrangements or record their agreement in a parenting plan.
A parenting plan can cover matters such as:
A parenting plan is not itself legally enforceable in the same way as parenting orders.
Parents can instead ask the Court to make consent orders reflecting their agreement. Consent orders are legally enforceable.
The right option depends on the family and the degree of certainty and enforceability required.
In most parenting cases, a person must attempt Family Dispute Resolution before applying to the Court for parenting orders and obtain a section 60I certificate.
There are exceptions.
These can include circumstances involving family violence, child abuse, risk, urgency and certain other situations.
Where it is safe and appropriate, Family Dispute Resolution can allow parents to reach practical arrangements without litigation.
Parenting arrangements and child support are related, but they are separate legal issues.
Parents have a responsibility to financially support their children.
For most families, child support is dealt with administratively through Services Australia.
A child support assessment uses a statutory formula. It takes into account matters including each parent's income, the costs of the children and the percentage of care provided by each parent.
It is therefore not simply a question of which parent the child “lives with”.
Parents may also agree to deal with child support through a limited or binding child support agreement.
A Limited Child Support Agreement is a written agreement under the Child Support (Assessment) Act 1989 (Cth).
There must already be a child support assessment in place before Services Australia can accept a Limited Child Support Agreement.
The amount payable under the agreement must be at least the amount payable under the relevant child support assessment.
Unlike a Binding Child Support Agreement, independent legal advice is not compulsory before entering a Limited Child Support Agreement. It can nevertheless be sensible to obtain advice before signing.
A Limited Child Support Agreement can include periodic payments as well as arrangements for expenses such as school fees or health insurance.
A Limited Child Support Agreement cannot simply be varied. Depending on the circumstances, it may be terminated and replaced with another agreement.
The legislation also provides mechanisms by which a Limited Child Support Agreement may be terminated after it has operated for three years, subject to the statutory requirements.
Care arrangements are important. A person receiving child support under an agreement generally needs to have at least 35 per cent care of the child.
A Binding Child Support Agreement gives parents considerably more flexibility about the amount and form of child support.
Unlike a Limited Child Support Agreement, there does not generally need to be an existing administrative child support assessment before a Binding Child Support Agreement can be made, although different requirements apply to some forms of agreement, including lump sum arrangements.
The agreed amount may be more or less than the amount that would otherwise be payable under a formula assessment.
A Binding Child Support Agreement must satisfy strict statutory requirements.
Importantly, each party must obtain independent legal advice before signing the agreement.
The lawyer advising each party must advise them about the effect of the agreement and its advantages and disadvantages at the time the advice is provided. The required certificates must also be completed.
If those requirements are not satisfied, the agreement will not qualify as a Binding Child Support Agreement.
A Binding Child Support Agreement cannot simply be varied. If the parents later want a different arrangement, the existing agreement generally needs to be terminated in accordance with the legislation and a new agreement made.
Because these agreements can have significant long-term financial consequences, getting the drafting right matters.
Depending on the arrangement, parents may use private collection or Child Support Collect through Services Australia.
Private collection means the parents manage payments themselves.
Child Support Collect involves Services Australia collecting and transferring payments.
The appropriate option will depend on the circumstances, including whether payments are likely to be made reliably.
The usual child support regime generally concerns children under 18, but financial support can sometimes continue beyond a child's 18th birthday.
Section 66L of the Family Law Act allows the Court to make a child maintenance order for a person aged 18 or over where maintenance is necessary:
This is commonly called adult child maintenance.
It is not automatic.
The Court considers the child's necessary financial support and the contribution that should reasonably be made by the relevant parent or parents.
Depending on the case, relevant matters can include the child's financial needs, their own income or earning capacity and the financial circumstances of the parents.
For education cases, the nature of the course and the child's circumstances will also be relevant.
A disability does not necessarily have to have arisen before the child turned 18 for adult child maintenance to be available.
There is no standard parenting arrangement that applies to every separated family.
The current Family Law Act does not presume equal time and no longer contains the former presumption of equal shared parental responsibility.
The starting point for parenting decisions is the individual child's best interests, including their safety, needs, views where relevant, relationships and particular family circumstances.
Where parents can reach an appropriate agreement, arrangements may be documented through a parenting plan or consent orders.
Where they cannot agree, Family Dispute Resolution will usually be the next step before court proceedings, unless an exception applies.
Urban Law Group advises parents about parenting arrangements, parental responsibility, consent orders, Family Dispute Resolution, parenting proceedings and child support arrangements.