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.
This blog explains how Australian courts make decisions about children's living arrangements after separation, what factors are considered, and what parents should expect in the process.
The best interests of the child: The paramount principle
Under Section 60CA of the Family Law Act 1975 (the Act), the court must regard the best interests of the child as the paramount consideration when making any parenting order.
This principle overrides all other concerns — including parental rights or convenience. Every decision is tailored to the unique circumstances of the child and family.
How a Court Determines What is in a Child’s Best Interests
General Considerations (Applies to All Children)
The court must consider:
- Safety of the child and caregivers (protection from violence, abuse, neglect, or harm).
- Child’s views, considering their age and maturity.
- Developmental, psychological, emotional, and cultural needs.
- Each parent’s capacity to meet these needs.
- Benefit of relationships with parents and other significant people—only where it is safe.
- Any other relevant circumstances.
The court must also specifically consider:
- Any history of family violence, abuse, or neglect.
- Any existing or past family violence orders involving the child or their family.
Additional considerations for Aboriginal or Torres Strait Islander children
The court must consider:
- The child’s right to connect with their culture, family, community, country, and language.
- Opportunities to develop a positive cultural identity.
- The impact of any parenting order on these rights.
The court takes a holistic view of all these factors when determining with whom a child should live and the amount of time the child should spend with each parent.
What does “Live with” mean in legal terms?
In family law, "live with" refers to where the child primarily lives. This may be:
- With one parent full-time, with the other having scheduled time.
- Shared between both parents (commonly referred to as shared care).
- With a third party in rare circumstances, such as a grandparent or guardian.
Live with arrangements are set out in parenting plan or parenting orders, which can be made by consent or determined by the court after a contested hearing.
Equal shared parental responsibility vs. equal time
Many people assume that joint parental responsibility or joint decision making means equal time with the children — but this is a common misconception.
Joint parental responsibility refers to major long-term decision-making (education, religion, health) which are decisions which should be made jointly by the parents or at the very least are decisions with which parents should consult one another.
An order for joint parental responsible/joint decision making, does not mean that the Court will automatically order joint time.
How the court gathers information
To assess the best arrangement for the child, the court may gather evidence from various sources:
1. Family Reports
Prepared by court-appointed or private family consultants (psychologists or social workers), these family reports offer expert recommendations based on interviews with parents, children, and sometimes other family members.
2. Independent Children's Lawyer (ICL)
In complex or high-conflict cases, the court may appoint an ICL to represent the child’s best interests. Pursuant to the Act, the ICL must meet with children above the age of 5 years and provide the child an opportunity to express any views in relation to any matter. The ICL may question witnesses, suggest evidence, and give recommendations.
3. Child’s Views
Depending on their age and maturity, the child’s preferences may be taken into account — often relayed through a family consultant or ICL.
4. Other Evidence
This includes text messages, school records, police or child protection reports, affidavits from both parents and third party witnesses, and any history of violence or neglect.
Does the court prefer one parent?
Australian family law does not favour mothers over fathers. The legislation is gender-neutral and focused solely on the best interests of the child.
However, courts often place a strong emphasis on:
- Stability and routine (particularly for younger children).
- The primary attachment figure, especially in early developmental years.
- Any safety concerns, such as exposure to domestic violence or substance abuse.
In practice, if one parent has historically been the primary caregiver and the other has limited involvement, the court may determine that a change in residence would be too disruptive for the child.
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Can parenting orders be changed?
Yes, but only if there has been a significant change in circumstances. This is known as the Rice and Asplund principle which was recently codified in section 65DAAA of the Act, and prevents parents from frequently reopening parenting cases unless there’s a real need.
Common triggers for change include:
- Relocation by one parent
- Changes in the child’s wishes (as they mature)
- Safety concerns or incidents
- Significant changes in a parent’s availability or health
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Alternatives to court: reaching agreement out of court
Court should be a last resort. Most families are encouraged to resolve parenting matters through:
- Parenting plans: Written agreements about children’s care (not legally binding).
- Consent orders: Court-approved parenting orders made by agreement (legally binding).
- Mediation: Family Dispute Resolution (FDR) is required before applying to court (with some exceptions, such as family violence). Parties can enter into Parenting Plans at Mediation.
These methods are less adversarial, cheaper, and often lead to more cooperative co-parenting outcomes.
Final thoughts
Deciding where a child lives after separation is one of the most critical decisions parents and courts can make. The guiding star is always the child’s best interests, not the desires or entitlements of the parents.
If you’re facing a separation or dispute over children’s living arrangements, it's essential to:
- Understand the legal principles involved,
- Seek legal advice early, and
- Consider cooperative approaches where possible.
Ultimately, the goal is not to "win custody” — it is to ensure that children continue to feel safe, loved, and supported in a stable and nurturing environment and that there best interest are being met.
Disclaimer: This blog is for general information only and does not constitute legal advice. Please consult a qualified family lawyer for advice tailored to your individual circumstances.
