“So, it’s going to be 50/50, right?”
That’s a question we hear at first appointments around parenting orders all the time, but there’s no automatic 50/50 split.
Equal time is still a possible outcome for some families, but it isn’t the default for the court and there are no presumptions about where a child spends most of their time.
Instead, courts decide what arrangement is in the child’s best interests, with the child’s safety the most relevant factor.
Where does the 50/50 belief come from?
Mostly from the old law.
It isn’t an unreasonable belief because until May 2024, the Family Law Act required the court to consider whether it was appropriate for the children to spend equal time with both parents. It also contained a presumption of equal parental responsibility, but both were removed in 2024.
Regardless, 50/50 is still one of the two most common assumptions people we speak to hold. It actually comes up for both parenting and property, with people often expecting assets to be divided equally or kids to live with each of them on a week on, week off basis.
However, neither happens automatically.
Check the date on what you read. A lot of what people find online when doing their own research, and what they hear from well-meaning family and friends, was written before these changes took effect on 6 May 2024.
If something talks about a “presumption of equal shared parental responsibility,” it’s out of date.
What does a parenting order decide?
In most cases, parenting orders decide three main things, mainly:
- Where the children will live
- How much time they spend with each parent, and with other people who matter to them
- Who makes the big decisions about their lives
People often search for “parental responsibility,” which is still the legal term, but we rarely use it in practice now.
Orders focus on decision-making responsibility for major long-term issues, which include a child’s:
- Education
- Religious and cultural upbringing
- Health
- Name
- Any move that would make it much harder for the child to spend time with a parent
Decision making responsibility can be joint or sole, and it can also be split by issue. One parent might have sole decision-making responsibility for most major issues, while both parents share it on religion, for example.
What has changed in practice since May 2024
The single most noticeable change we’ve seen in court is how decision-making is argued.
Whether one parent should have sole decision-making responsibility for a child’s major long-term issues, or it should be shared by both parents, must now be discussed very specifically.
You used to be able to rely on the status quo, and while that history is still relevant, it no longer settles the question by itself.
Example: Mum has made all the decisions for 3 years. That used to go a long way, but now the court wants to know why she has been the one making them and whether that is still an appropriate situation.
How the court decides what is in a child’s best interests
The Court considers a list of things set out in the Family Law Act when deciding whether to make a parenting order, with the child’s best interests and their safety the first and most important factors considered.
The court looks closely at:
- Safety. What arrangements would keep the child, and anyone caring for the child, safe from family violence, abuse, neglect and/or other harm. The court must take into account any history of family violence, abuse or neglect involving the child or a person caring for them, and any family violence order that applies or has applied to the child or a member of their family.
- The child’s views. What the child has said they want (if they have shared that wish to an Expert or an Independent Children’s Lawyer in the matter), weighed alongside everything else. This is one factor, not a vote.
- The child’s needs. Their developmental, psychological, emotional and cultural needs.
- Each person’s capacity to meet those needs. This applies to each person who has, or would have, decision-making responsibility for the child.
- Relationships. The benefit to the child of a relationship with their parents and other people who are significant to them, where it is safe for them to have it.
- Anything else relevant to the child’s particular circumstances.
For an Aboriginal or Torres Strait Islander child, the Court also considers the child’s right to enjoy their culture. Where parents agree on arrangements and ask the court to make consent orders, the Court may work through each of the above factors, although the Court is not obliged to do so.
Which factor do parents most often underestimate?
Connection to extended family, which catches a lot of parents out.
Example: Zoe and Zed have lived with their Mum for 5 years and spent every second weekend with Dad. They also spend an average of 1 night a week with Grandma Alice, their maternal grandmother. Dad then applies for the children to live with him, and the Court considers changing their care because Mum has been shown to pose a risk of harm to the children.
That doesn’t mean the Court wants to end Zoe and Zed’s connection with Grandma Alice. Where it is safe, time with a grandparent can continue even when the children’s main home changes.
Grandparents, aunts, uncles and step-siblings can all be people who matter to a child, and the Court looks at those relationships in their own right.
What happens once orders are made?
- Big decisions. Parents are encouraged to work together when making major long-term issues, as long as it is safe to do so. If an order gives them joint decision-making responsibility, they must consult with each other and make a genuine effort to agree, unless the order states otherwise.
- Day-to-day decisions. Whoever the child is with at the time doesn’t usually need to consult the other parent about things like what the child eats or wears.
- Changing final orders. This isn’t easy. The Court must first consider whether there has been a significant change in circumstances, and also be satisfied that revisiting the orders is in the child’s best interests. This doesn’t necessarily apply if everyone agrees to the orders being reconsidered.
Before applying for parenting orders, most parents need to try family dispute resolution (mediation) first, which has its own rules and exceptions.
What do parents think matters to the Court that actually doesn’t?
Why the relationship ended. Many parents expect the Court to care about what led to the end of their relationship, whether the dispute is about the children, property or anything else. However, it usually doesn’t.
Example: Jane says John was unfaithful for the last 2 years of their marriage and introduced the children to his new partner, so she asks that John only see the children at a supervised contact centre.
This might sound far-fetched, but requests like this come up more than you’d think.
The Court’s answer, put simply, is that it doesn’t matter that Dad cheated. The law recognises the benefit to children of a relationship with each parent, where it is safe, and the children might make up their own minds about their personal relationships as they grow up.
The exception is family violence. If the separation involved family violence, abuse or neglect, this is very important because safety is among the first matters the Court considers.
The same is true of property: since 10 June 2025, the effect of family violence is expressly something the Court must take into account, where relevant, in a property settlement matter.
How you can prepare before seeing a lawyer
A little bit of preparation can help make your first appointment far more useful:
- Write down the current arrangements. Where the children live, the time they spend with each parent and how long it has been that way.
- Note who has made the big decisions about schooling, health and religion, and why this is the case. The Court is likely to ask this.
- List the other people who matter to the children, such as grandparents, relatives and step-family, and how often the children see them.
- Be clear about any safety concerns. Tell your lawyer about any history of violence, abuse or neglect, and any protection orders.
In Queensland, a domestic violence order is a separate process made under the Domestic and Family Violence Protection Act 2012 (Qld) in a different Court.
What this article can’t tell you
Every parenting matter hinges on the particular child and the particular family in question. This is general information about how the law works, not advice about your specific situation, and it can’t tell you what a Court would decide for your children.
Many family law matters can be resolved without going to Court. If you’d like direct, professional advice about arrangements for your children, call 1300 415 408 or use our contact form to see how we can help you.
