• With whom a child lives with;
• With whom a child spends time with;
• With whom a child communicates with.

The paramount consideration is the best interests of the children.

The Family Law Act sets out various factors which must be taken into account and these include: -

• Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent possible provided that is in the best interests of the child;
• Protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
• Ensuring children receive adequate and proper parenting to help them achieve their full potential;
• Ensuring that parents fulfil their duties and meet their obligations regarding the care, welfare and development of their children;
• Children have the right to know and be cared for by both their parents regardless of whether or not their parents are married, separated, have lived together or not;
• Children have a right to spend time with and communicate with their parents and other people significant to their care, such as grandparents;
• Parents jointly share duties and responsibilities about the care, welfare and development of their children;
• Parents should agree about the future parenting of their children;
• Children have a right to enjoy their culture and to share that culture with other people who enjoy that culture.

On 1 July 2006, the Family Law Act was amended. It provided that there is a presumption of equal shared parental responsibility (this does not always mean equal shared time).

The presumption can only be displaced in limited circumstances including where there is family violence or child abuse. See our factsheet about equal shared parental responsibility.

If the presumption is not displaced, the court must consider an order which provides that the children spend equal time with each parent. Alternatively, there may be an order that the children spend significant or substantial time with each parent.

These factors help the court decide what is in the best interests of the child.

Primary consideration

The benefit to the child of having a meaningful relationship with both of their parents.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

Additional considerations

• Any views expressed by the child (subject to the child's maturity or understanding) that the court thinks are relevant.
• The nature of the relationship of the child with their parents and any other significant persons.
• The willingness and ability of the parents to facilitate and encourage a close and meaningful relationship between the child and the other parent.
• The likely effect of any changes in the child's circumstance including a separation from a parent or other person with whom the child has been living.
• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child's right to maintain relations and contact with the child's parent on a regular basis.
• The capacity of each of the child's parents and any other significant person to provide for the needs of the child including the emotional and intellectual needs of the child.
• The maturity, sex, lifestyle and background of the child and of either parent and the characteristics of the child that the court thinks are relevant.
• If the child is an Aboriginal or Torres Strait Islander child then cultural considerations will be taken into account.
• The extent to which each of the child's parents have fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each parent has taken or failed to take the opportunity: -

• To participate in making decisions about major long term issues, spent time with the child and communicated with the child;
• Has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child, spending time with the child and communicating with the child;
• Has fulfilled or failed to fulfil the parent's obligation to maintain the child (paid child support);
• Events that have happened and circumstances that have existed since separation.

The court must consider whether an Order providing that children spend equal time with both parents or significant and substantial time with both parents is reasonably practicable. In making a decision about whether an order is reasonably practicable, the court must consider: -

• How far apart the parents live from each other;
• The parents' current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parties;
• The parents' current and future capacity to communicate with each other and resolve difficulties that may arise in implementing such an arrangement;
• The impact that such an arrangement would have on the child;
• The particular circumstances of the case.

The court has a wide discretion. The court must make the order which is in the best interests of the child.

If there is an order in place and a parent wishes to make a change, then the parties can agree to change the Order.