Who a Child Lives With After Separation: What the Court Really Considers
One of the most difficult parts of separation is deciding where your child will live and what happens when both parents can’t agree.
When these matters go before the Court, the guiding question is never about parental preference. It’s about one thing: What’s in the best interests of the child?
If you’re beginning the process of formalising parenting arrangements, this article will help you understand how the Court approaches these decisions and what factors could influence the outcome.
It is important to note that, unless an exemption applies, such as family violence or urgency, among others, parents must comply with pre-action procedures before commencing court proceedings, including attempting dispute resolution.
If parties still cannot reach agreement, your matter can proceed to court for determination.
At a Glance
Before diving into the details, here’s a quick overview of how the Court approaches decisions about where a child will live:
Best interests of the child come first: The Court's primary focus is on the child’s safety, well-being, and emotional development, not on parental preference.
There’s no automatic 50/50 time split: Equal care may be considered, but only if it is both in the child’s best interests and reasonably practical.
The child’s views may be considered: Especially if they are mature enough to express their preferences clearly and independently.
Gender is not a factor: The law is gender-neutral and doesn’t favour mothers or fathers. Decisions are based on individual circumstances and parenting capacity.
Evidence matters: Family reports, independent children’s lawyers, and affidavits help the Court understand the family dynamic before making a decision.
Parental conduct counts: Each parent’s history, behaviour, and ability to support the child’s relationship with the other parent is assessed.
Agreement is always encouraged: Mediation and parenting plans can often help avoid court proceedings altogether.
These guiding principles shape how the Court considers each family’s unique circumstances and ultimately determines living arrangements that aim to support the child’s long-term well-being.
The Golden Rule: The Child’s Best Interests
In Australian family law, all decisions about parenting arrangements must reflect the best interests of the child. This principle is set out in the Family Law Act 1975 (Cth) and underpins every determination the Court makes.
It’s not about who “deserves” custody, or who earns more, or even who initiated the separation. The focus is squarely on the child’s well-being, now and into the future.
To reach this decision, the Court considers a broad set of factors outlined in Section 60CC of the Act, such as:
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
Any views expressed by the child
The developmental, psychological, emotional and cultural needs of the child
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs
The benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so
Anything else that is relevant to the particular circumstances of the child
These considerations are weighed carefully. However, where there is a conflict between maintaining a relationship with both parents and protecting the child from harm, safety will always take precedence.
How the Court Gathers Information Before Deciding
The Court recognises that no two families are alike, which is why these decisions are never made in isolation. Instead, they’re informed by multiple sources of evidence that help build a clear picture of the child’s life.
One of the most important tools is a family report prepared by a qualified court-appointed family consultant or an independent private family report writer. This professional may interview the child, both parents, and even other key people in the child’s life.
Their role is to assess the family dynamic and provide an independent view on what arrangements are likely to serve the child’s best interests.
In some cases, the Court may also appoint an Independent Children’s Lawyer (ICL) to represent the child’s interests, especially where there are complex issues or allegations of risk.
The ICL represents the children to determine what they consider to be in the child’s best interests.
These insights are supported by affidavits, school or medical records, and expert reports — all of which contribute to a balanced, evidence-based decision.
Does the Court Favour One Parent Over the Other?
No. The Family Law Act is gender-neutral. There’s no legal assumption that one parent is more capable or entitled than the other.
It’s also worth clarifying a common misconception: There is now no presumption of 50/50 care. Equal time is not automatically granted.
In fact, it will only be considered if it’s both:
In the child’s best interests, and
Reasonably practicable, given factors like distance, routines, schooling, and each parent’s capacity
In other words, shared parenting works best when it works for the child, not just the parents.
Will the Court Consider My Child’s Wishes?
Yes, but with important context.
A child’s views are one of the many factors the Court may take into account. How much weight they’re given will depend on:
The child’s age and level of maturity
Whether their preferences appear to be independently formed
For example, a thoughtful and consistent preference expressed by a teenager may carry more weight than a younger child’s feelings, which can be more fluid or influenced by a parent.
That said, the child’s opinion is never the sole deciding factor. The Court balances its views with all other considerations to make a decision that protects and supports them long term.
What Role Does a Parent’s Conduct Play?
The Court will closely examine each parent’s behaviour, both before and after separation. This includes:
Their level of involvement in the child’s care and education
Their ability to meet the child’s emotional and physical needs
Their attitude toward the other parent and willingness to encourage a healthy co-parenting relationship
Any evidence of family violence, substance misuse, or neglect
Ultimately, the Court looks for patterns. A parent who consistently prioritises their child’s wellbeing and fosters respectful co-parenting will be viewed favourably.
On the other hand, attempts to alienate the child from the other parent or exposing the child to conflict may weigh against them.
What If We Can’t Agree on Living Arrangements?
When parents can’t reach an agreement, the first step is usually Family Dispute Resolution (FDR) — a structured mediation process designed to help you work out parenting arrangements without going to court.
If FDR is unsuccessful or not appropriate (for example, where family violence is involved), either parent can apply to the Federal Circuit and Family Court of Australia for parenting orders. These are legally binding and may address:
Where the child will live
How much time they’ll spend with each parent
Who is responsible for key decisions (like schooling and healthcare)
How the child will communicate with each parent
No two families are the same, so parenting orders are tailored to suit your child’s individual needs, not a one-size-fits-all model.
Supporting Your Child Through the Process
Legal proceedings can be overwhelming, not just for parents but for children too. That’s why it’s so important to approach the process in a way that prioritises their emotional well-being.
Here are a few things that can help:
Avoid placing your child in the middle of conflict or decision-making
Reassure them that both parents love them
Try to keep routines and environments as stable as possible
Speak with a counsellor or family therapist if your child is struggling
How you handle this time as a parent can have a lasting impact. Staying calm, cooperative, and child-focused will go a long way, both in court and at home.
Frequently Asked Questions
Can a child choose which parent they live with?
Not directly. A child’s wishes are considered by the Court, especially if they are mature enough to express them clearly. However, the final decision rests with the Court and is based on what’s in the child’s best interests overall.
Will the Court always order shared care or equal time?
No. Equal time is not the default. It will only be ordered if it’s in the child’s best interests and is practically achievable — for example, if parents live close by and can communicate effectively.
What if both parents agree without going to Court?
If you and the other parent reach an agreement, you can formalise this through a parenting plan (not legally binding) or apply for consent orders (legally enforceable). This is often the most efficient and amicable path forward.
Does the Court assume the mother should be the primary carer?
No. Australian law does not favour mothers or fathers. Each parent is assessed on their individual capacity to provide for the child’s needs and support their overall well-being.
How long does it take to get a Court decision about living arrangements?
Timelines vary depending on the complexity of the case and the Court’s schedule. Simple cases may be resolved in a few months; complex or high-conflict cases can take significantly longer, especially if interim orders are needed.
Need Guidance on Parenting Arrangements?
At Hamilton Thomas Family Lawyers, we know that parenting matters are deeply personal and that no two families are alike.
Whether you're preparing for court, navigating mediation, or simply seeking clarity on your options, we're here to help.
Get in touch today for compassionate, practical legal advice that puts your child’s well-being first.
