Safety Note: If you or your children are in immediate danger, or if there is an active threat of family violence, please contact 000 immediately.
Structuring effective family law parenting arrangements after a separation or divorce is one of the most significant steps you will take for your children’s future. The decisions made now shape their stability, emotional development, and ongoing relationships with both parents.
At Jameson Law, we guide NSW families through the complexities of the Family Law Act 1975. This practical guide explains the current legal framework, your options for formalising agreements, and how the law prioritises the safety and best interests of the child.
Family Law Parenting Arrangements: Options and Legal Effect
Australian family law uses child-focused language. Rather than speaking about “custody” or “visitation rights,” the law focuses on who the child lives with, who they spend time with, and how parental responsibility (major long-term decision-making) is allocated.
When separated parents need to establish a framework for their children’s care, there are four primary pathways available. Each offers a different level of flexibility and legal enforceability.
| Arrangement Type | Description | Legally Binding? |
|---|---|---|
| Informal Agreement | A verbal or unwritten agreement between parents regarding care schedules and decision-making. | No. Highly flexible, but relies entirely on mutual trust and cooperation. |
| Parenting Plan | A written, signed, and dated document outlining the child’s living arrangements, financial support, and decision-making protocols. | No. However, courts can consider its terms if a dispute later proceeds to litigation. |
| Consent Orders | A written agreement submitted to and approved by the Federal Circuit and Family Court of Australia. | Yes. Carries the same legal weight as orders made by a judge after a trial. |
| Contested Parenting Orders | Orders imposed by a judicial officer after a contested court hearing when parents cannot agree. | Yes. Strictly enforceable, with significant penalties for non-compliance. |
The Child’s Best Interests Framework
Important 2024 Legislative Updates
On 6 May 2024, the Family Law Act 1975 underwent critical reforms. The previous presumption of “equal shared parental responsibility”—and the associated requirement for courts to consider children spending equal or substantial time with each parent—was repealed.
Today, there is no “default” parenting arrangement. There is no legal presumption that a child should spend equal time with both parents. Instead, parental responsibility and living arrangements are tailored entirely around a modernized “best interests of the child” framework.
Core Considerations for Parenting Orders
When determining what arrangements serve a child’s best interests, the court must now consider a simplified list of six core factors:
- Safety: The need to promote the safety of the child and each person who has care of the child (protecting them from family violence, abuse, neglect, or other harm).
- The Child’s Views: Any views expressed by the child, weighted according to their age, maturity, and understanding.
- Developmental and Emotional Needs: The developmental, psychological, emotional, and cultural needs of the child.
- Capacity of Carers: The capacity of each person who has or is proposed to have care of the child to provide for the child’s developmental, psychological, emotional, and cultural needs.
- Benefit of Relationships: The benefit to the child of being able to have a relationship with their parents, and other significant people, where it is safe to do so.
- Anything Else Relevant: Any other fact or circumstance the court determines is relevant to the specific child.
For Aboriginal or Torres Strait Islander children, the court must also consider their right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to connect with, and maintain their culture with, their family and community.
Reaching an Agreement: Family Dispute Resolution (FDR)
Litigation is emotionally taxing, expensive, and removes decision-making power from the parents. Therefore, Australian family law actively encourages out-of-court resolutions.
The Section 60I Requirement
Under Section 60I of the Family Law Act, parents are generally required to attend Family Dispute Resolution (FDR) mediation and obtain a valid “Section 60I certificate” before they are legally permitted to file an application for parenting orders in court.
During FDR, an independent, accredited practitioner assists parents in communicating safely and negotiating practical living and decision-making arrangements.
Exemptions to Mediation
While mediation is highly effective for many, it is not appropriate for everyone. The law provides strict exemptions to the FDR requirement. You do not have to attend mediation if:
- There has been, or there is a risk of, family violence or child abuse.
- The matter is urgently required to be heard by a court.
- One party is unable to participate effectively due to geographical distance or physical/mental health incapacities.
Crucially: Do not pressure yourself into an unsafe mediation environment. If you hold fears for your safety or the safety of your children, speak to your lawyer immediately about seeking an exemption and implementing protective legal strategies.
Frequently Asked Questions
Is equal shared parental responsibility the default in Australian family law?
No. Significant changes to the Family Law Act 1975 on 6 May 2024 repealed the presumption of equal shared parental responsibility. There is no longer a ‘default’ starting point or a requirement for the court to consider equal time. All decisions regarding who a child lives with, spends time with, and who holds parental responsibility are based solely on the child’s best interests.
What is the difference between a parenting plan and consent orders?
A parenting plan is a written, signed agreement between parents that sets out parenting arrangements. While highly practical, it is not legally enforceable by a court. Consent orders are written agreements that have been submitted to and approved by the Federal Circuit and Family Court of Australia, making them legally binding and enforceable.
Do we have to go to court to sort out parenting arrangements?
No. Many separated parents agree on arrangements informally, through family dispute resolution, or in a parenting plan. If both parties agree and want legally binding terms, they can apply for consent orders without a contested hearing. Court proceedings may still be necessary where agreement is unsafe, impossible or not reached.
Final Thoughts
Structuring robust family law parenting arrangements requires navigating high emotions while keeping your child’s emotional and developmental needs at the forefront. Following the 2024 legislative updates, the focus has shifted entirely away from parental “presumptions” and squarely onto the practical, safe, and holistic best interests of the child.
Whether you need assistance drafting a flexible parenting plan, formalizing a binding consent order, or seeking urgent protection from the Federal Circuit and Family Court, independent legal advice can clarify your legal position while keeping your children’s safety and wellbeing central.
To discuss your family’s unique circumstances with a compassionate legal professional, contact the family law team at Jameson Law today.
