When parents separate, decisions regarding the children are often made quickly and under pressure. Initial living and care arrangements such as where children will live, how time is shared and how decisions are made are frequently settled informally in the early weeks following separation.
While these arrangements are often intended to be temporary, Australian family law recognises that early parenting decisions can take on lasting significance. Courts regularly examine what occurred immediately after separation when assessing later parenting disputes, particularly where care patterns have continued for an extended period.
Understanding how the law approaches early parenting decisions helps explain why the first arrangements matter and why clear guidance at this stage can be critical.
The legislative framework for parenting decisions
Parenting matters are governed by Part VII Family Law Act 1975 (Cth). Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as a paramount consideration.
Section 60CC sets out the factors used to determine a child’s best interests. These include the benefit of a meaningful relationship with both parents, the need to protect the child from harm and additional considerations such as the child’s circumstances, the capacity of each parent and the practicality of proposed lifestyle changes.
Importantly, the Act does not distinguish between care structures made immediately after separation and those made later. Instead, the focus is on how parenting has operated in practice and how that experience affects the child.
How early arrangements are considered by courts
Courts frequently look to the child’s experience following separation as part of their assessment. While interim arrangements are not determinative, they can carry weight if they have become established and appear to be functioning well.
In Goode & Goode (2006), the Full Court of the Family Court confirmed that the court’s task is not to start from a blank slate. Where children have settled into a routine, the court may take that stability into account when determining what parenting outcomes are in their best interests.
This does not mean early patterns are automatically endorsed. However, where a particular pattern of care has continued over time, it may become the practical reference point against which proposed changes are assessed.
The risk of informal decisions
Prompt parenting decisions are often made informally, without documentation or legal advice. Parents may agree to temporary living structures based on immediate practical needs, housing availability or work commitments.
While these choices may resolve short term issues, they can become difficult to revisit later. Courts are often cautious about disrupting establishes routines that have provided stability for a child, especially where no safety concerns are raised.
In Rice & Asplund (1979) the court recognised the importance of finality and stability in parenting arrangements. The case reflects a broader principle that repeated changes to a child’s living arrangements are generally discouraged unless there is a significant reason to intervene.
Equal shared parental responsibility and common misunderstandings
In the Family Law Act, a presumption is created that it is in the child’s best interest for parents to have equal shared parental responsibility, unless there are reasonable grounds to believe family violence or abuse has occurred.
This presumption relates to decision-making responsibility and not the time spent with a child. Misunderstandings surrounding this distinction often impact choices made early on.
In M v M(1988), the High Court considered a parenting dispute where there were serious allegations about the child’s welfare that required the Court to decide custody arrangements. The Court held that, regardless of parental claims or rights, the child’s welfare must be the paramount consideration, establishing that parental rights exist only to serve the child’s best interests. This principle continues to underpin how courts approach parenting matters today.
Decisions made early on, based on these assumptions rather than an understanding of the legal framework can therefore lead to expectations that do not align with how courts ultimately assess parenting disputes.
How stability affects parenting decisions
Stability is a recurring theme in parenting cases. Courts are concerned with minimising disruption to children’s lives while ensuring arrangements promote their welfare.
In AMS v AIF (1999), the High Court recognised that stability is an important factor but not a determinative one. Stability must be balanced against other considerations, including the quality of relationships and the long term interests of the child.
This decision highlights that, while early decisions may carry weight, they do not override the court’s obligation to assess what parenting outcome best promotes a child’s welfare overall.
The value of early legal guidance
Early legal guidance does not require immediate court proceedings. In many cases, it assists parents in understanding how early decisions may be interpreted later and how to structure parenting frameworks in a way that reflects both short-term and long-term considerations.
Guidance at this stage can help parents:
- Understand how the best interests framework operates
- Clarify whether arrangements are intended to be interim
- Reduce the risk of informal decisions becoming entrenched unintentionally.
This approach often supports more constructive co-parenting and reduces the likelihood of disputes escalating.
Informed choices
The period immediately following separation is often marked by uncertainty and decisions made during this time can carry greater legal significance than many parents expect.
Australian family law places emphasis on children’s lived experience, stability and best interests. Parenting patterns, even when informal, do form part of that assessment.
Understanding how the law approaches early parenting decisions allows parents to make more informed choices and avoid difficulties that arise when temporary structures become long term by default.
If you are navigating parenting arrangements following separation, our Family Law team can provide clear and practical advice tailored to your circumstances.
To arrange an appointment, call (02) 4350 3333 or visit aubreybrown.com.au.
