How does the court determine where a child lives post-separation in Australia?

When a relationship breaks down, one of the most emotionally charged and complex issues can be deciding where the children will live. In Australia, if parents cannot reach an agreement, the Federal Circuit and Family Court of Australia (FCFCOA) may be asked to determine parenting arrangements, including where the child lives and how much time they spend with each parent.

Rather than focusing on what either parent wants, the court considers what arrangement will best support the child's safety, well-being, development, and ongoing relationships with important people in their life. Every family is different, so decisions are based on the individual circumstances of each case.

The court's goal is to create parenting arrangements that promote stability, protect the child from harm, and support their long-term best interests.

The best interests of the child: The paramount principle

Under the Family Law Act 1975, the court must treat the best interests of the child as the paramount consideration when making decisions about where a child lives and other parenting arrangements.

When determining a child's living arrangements, the court considers a range of factors as part of the best interests assessment. These considerations help the court understand the child's circumstances and determine what arrangement is most appropriate.

The court may consider:

• The child's views, taking into account their age and maturity
• The child's developmental, psychological, emotional, and cultural needs
• Each parent's capacity to meet the child's needs
• The benefit of maintaining relationships with parents and other significant people, where it is safe to do so
• The child's right to enjoy their culture and identity
• Any other circumstances relevant to the child's well-being and best interests

When the court prioritises safety and family violence evidence

The safety of the child is one of the most important considerations in any parenting matter. If there are concerns about family violence, abuse, neglect, or other risks, the court may give these issues greater weight than other competing considerations, including a parent's desire for more time with the child.

To assess potential risks, the court may consider a range of evidence, including:

• Family violence intervention orders and related court documents
• Police reports and criminal records
• Child protection records and investigations
• Medical reports, hospital records, and psychological assessments
• Family reports prepared by family consultants
• Affidavits from parents, relatives, teachers, or other witnesses
• School records that identify behavioural, welfare, or attendance concerns
• Text messages, emails, social media posts, and other relevant communications

Where evidence establishes an unacceptable risk to the safety of the child, the court may make parenting orders designed to protect the child from harm.

Equal shared parental responsibility vs where a child lives

Many parents assume that equal shared parental responsibility means a child will spend equal time with each parent. However, these are two separate concepts under Australian family law.

Parental Responsibility relates to major long-term decisions about the children. These decisions include decisions about education, health, their name, religion and other significant issues  including where the children live if it would make it substantially more difficult to spend time with the other parent. 

Unless there is a Court Order specifying that only one parent has parental responsibility, both parents are expected to consult one another about major decisions affecting the children. 

However, having equal parental responsibility does not automatically result in equal time arrangements. 

Where a child lives relates to the children’s living arrangements and the time they spend with each parent. This is determined based on the children’s best interests and individual circumstances. 

The court considers parental responsibility and living arrangements separately. Even where parents share responsibility for major decisions, the court may determine that equal time is not in the child's best interests.

Depending on the child’s age, maturity and development, the court may consider a child's views when making parenting orders, but this does not mean a child gets to decide where they live. 

The child's views are identified

The court may seek to understand the child's wishes, feelings, and experiences regarding their living arrangements and relationships with family members.

A family report may be prepared

A family consultant may meet with the child and parents before preparing a family report. The report provides the court with professional observations and recommendations about the child's best interests.

An Independent Children's Lawyer may be appointed

In more complex parenting matters, the court may appoint an Independent Children's Lawyer (ICL) to represent the child's best interests throughout the proceedings.

The child's views are presented to the court

Rather than providing direct evidence, a child's views are usually communicated through a family report, an ICL, or other professional evidence.

The court considers the child's age and maturity

The court may give greater weight to the views of an older or more mature child, while still considering all other relevant factors.

A decision is made based on the child's best interests

A child's wishes are only one factor in the court's assessment. The final decision will always be guided by the child's best interests and overall well-being.

Most parenting disputes are resolved without the need for a judge to make a final decision. Parents who can reach an agreement may be able to formalise their arrangements through a parenting plan or consent orders, avoiding the time, cost, and uncertainty of litigation.

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Where parents reach an agreement through negotiation or mediation, they may choose to apply for consent orders to make their parenting arrangements legally binding. If an agreement cannot be reached, the court may determine the arrangements through litigation.

Relocation cases can arise when a parent wishes to move with a child to another suburb, region, state, or country. The court does not automatically approve or prevent a proposed move. Instead, it considers whether the relocation is in the child's best interests and whether the parenting arrangements will remain practical and beneficial for the child. 

Common factors the court may consider:

• The reasons for the proposed relocation
• The impact of the move on the child's relationship with each parent
• The practicality of ongoing parenting arrangements
• Travel time, distance, and associated costs
• The child's schooling, community connections, and support network
• The child's views, depending on their age and maturity
• The ability of parents to communicate and facilitate ongoing contact
• Whether alternative arrangements can maintain meaningful relationships

For example, a move to a neighbouring suburb may have little impact on existing parenting arrangements however it depends on the distance between the parent’s home with the proposed move. An intra-state relocation may have an impact on parenting arrangements. 

An interstate or international relocation may significantly affect the time a child can spend with the other parent. Where a relocation impacts the parenting arrangements and the other parent’s ability to spend time with the child, the court is required to carefully assess whether the proposed arrangement remains practical and in the child's best interests.

Legal principles are only part of the picture. Day-to-day realities can significantly affect whether proposed parenting arrangements are practical, sustainable, and capable of meeting a child's needs over time.

Relevant factors can include:

• The stability and suitability of each parent's housing
• The distance between homes and the child's school
• Existing routines, care arrangements, and support systems
• Travel requirements and transport availability
• Each parent's work commitments and availability
• School attendance, extracurricular activities, and social connections
• Access to extended family and other support networks
• The ability of parents to manage communication and changeovers
• The likely impact of any proposed changes on the child's routine and well-being

Parenting arrangements are more likely to succeed when they are realistic, workable, and supportive of the child's everyday life.

Can parenting orders be changed?

It depends. Before reconsidering an existing order, the court needs to be satisfied that there has been a significant or material change in circumstances since the original order was made. Examples of circumstances that may justify revisiting a parenting order include:

1. A parent proposes to relocate with the child
2. Significant changes in a child's needs, health, or schooling
3. New safety concerns, including family violence or risk of harm;
4. A substantial change in a parent's living arrangements or availability;

Every situation is assessed on its own facts. The focus remains on whether reconsidering the existing orders is in the child's best interests and whether there has been a genuine and significant change that warrants further court involvement.

Get expert advice 

Deciding where a child lives after separation is rarely a simple question. Every family is different, which is why parenting arrangements are determined by what best supports the child's safety, well-being, and long-term interests.

While court proceedings are sometimes necessary, many families are able to reach workable arrangements through negotiation, mediation, or consent orders. Understanding the factors that influence these decisions can help parents make informed choices and focus on what matters most: creating a stable and supportive future for their child.

If you're unsure about your options, seeking legal advice early can provide clarity and help you move forward with confidence.