When a relationship ends, one of the most difficult and emotionally charged issues parents face is how to arrange the care of their children. Who will the children live with? How much time will they spend with each parent? Who makes the important decisions about their upbringing?
In Australia, these questions are governed by the Family Law Act 1975 (Cth), and the answer to every one of them turns on a single, overriding principle: the best interests of the child. This article explains what that principle means, the factors a court weighs when applying it, and how recent reforms have reshaped the way parenting arrangements are decided.
The paramount consideration
Under the Family Law Act, the best interests of the child is the paramount consideration in all parenting matters. This is not one factor among many, it is the lens through which every decision is made. The focus is squarely on the child’s wellbeing, not on the wishes, entitlements, or convenience of either parent.
Importantly, the law was significantly reformed by the Family Law Amendment Act 2023 (Cth), with the key changes commencing on 6 May 2024. These reforms simplified the framework courts use and, in doing so, changed some long-held assumptions about parenting arrangements. Any parent seeking to understand their position should be aware that arrangements and advice from before that date may no longer reflect the current law.
The factors a court considers
Section 60CC of the Family Law Act now sets out a single list of general considerations that guide a court in determining what is in a child’s best interests. When making a parenting order, the court must consider:
- Safety: what arrangements would promote the safety of the child and each person who cares for the child, including safety from family violence, abuse, neglect, or other harm;
- The child’s views: any views the child has expressed, taking into account matters such as the child’s maturity and level of understanding;
- The child’s needs: the developmental, psychological, emotional, and cultural needs of the child;
- Each parent’s capacity: the capacity of each person who has or is proposed to have parental responsibility to meet those needs;
- The benefit of relationships: the benefit to the child of being able to maintain a relationship with each parent, and with other people who are significant to the child, where it is safe to do so; and
- Anything else relevant to the particular circumstances of the child.
In applying these considerations, the court must also give weight to any history of family violence, abuse, or neglect involving the child or a person caring for the child, and to any family violence order that applies or has applied to the child or a member of the child’s family.
You will notice that safety is listed first. This reflects a deliberate emphasis in the reformed law: a child’s right to a relationship with both parents is genuinely valued, but it is not pursued at the expense of the child’s safety.
Aboriginal and Torres Strait Islander children
The Act includes an additional consideration for Aboriginal and Torres Strait Islander children. Where a child is Aboriginal or Torres Strait Islander, the court must consider the child’s right to enjoy their culture, including the right to connect with and maintain their family, community, culture, country, and language, and the likely impact any proposed arrangement will have on that right. This recognises the importance of cultural connection to a child’s identity and wellbeing.
What changed in 2024: the end of the “equal time” presumption
Perhaps the most significant misconception among separating parents is the belief that the law starts from a position of equal, or 50/50, time. This was never quite accurate, and the 2023 reforms have made the position clearer still.
Before 6 May 2024, the law contained a presumption of “equal shared parental responsibility” and a related pathway that required courts, in certain circumstances, to consider whether equal time or “substantial and significant time” was appropriate. Those provisions have now been repealed.
There is no longer any presumption in favour of a particular arrangement. The court does not begin with an assumption of equal time and work backwards; instead, it starts with the child’s best interests and asks what arrangement genuinely serves them. For some children that will mean substantial time with both parents; for others, a very different arrangement will be appropriate.
Parental responsibility is not the same as time
A common source of confusion is the difference between where a child lives (and who they spend time with) and who makes the major decisions about their life. These are separate questions.
Parental responsibility concerns major long-term decisions. Matters such as the child’s education, health care, religious and cultural upbringing, name, and living arrangements that significantly affect where they can spend time with a parent. A court can order that parents make these decisions jointly, or that one parent has sole responsibility for some or all of them.
Where the court orders joint decision-making on major long-term issues, the Act requires parents to consult one another and make a genuine effort to reach a joint decision. Day-to-day decisions such as what a child eats or wears while in a parent’s care, are generally made by the parent the child is with at the time and do not require consultation.
The point is that a parent may have a significant role in decision-making even if the child does not spend equal time with them, and vice versa. Time and responsibility are decided separately, each by reference to the child’s best interests.
How the court finds out what is best for the child
Courts do not decide these matters in a vacuum. A range of tools helps the court understand the child’s circumstances, including:
- Family reports, prepared by a court-appointed family consultant who meets with the parents and, where appropriate, the child, and provides an independent assessment;
- An Independent Children’s Lawyer (ICL), appointed in more complex matters to represent the child’s best interests and to ensure the child’s views are placed before the court; and
- Evidence from the parents and other witnesses, including any evidence of family violence, the child’s needs, and each parent’s capacity to meet them.
The weight given to a child’s own views depends on their age, maturity, and level of understanding. Older children’s views will generally carry more weight, but the court is never bound simply to do what a child asks.
Changing arrangements later
Circumstances change as children grow. Where final parenting orders are already in place, a court will not simply re-open them on request. Generally, a party must show that there has been a significant change of circumstances since the orders were made, and that reconsidering the arrangements is in the child’s best interests, before the court will embark on a fresh hearing. This helps protect children from ongoing, destabilising litigation.
Reaching agreement without a courtroom
It is worth remembering that most parenting arrangements are resolved without a judge deciding them. Parents are encouraged and in most cases required to attempt family dispute resolution (mediation) before applying to the court, subject to exceptions such as matters involving family violence or urgency. Agreements can be recorded informally in a parenting plan or made legally binding through consent orders.
Resolving matters by agreement is usually less costly, less stressful, and far better for children than a contested hearing. A well-drafted agreement that reflects the same best-interests principles a court would apply gives families certainty and allows everyone to move forward.
How Owen Hodge Lawyers can help
Every family is different, and the arrangement that serves one child may be entirely unsuitable for another. Understanding how the current law applies to your circumstances is the first step towards a workable outcome.
At Owen Hodge Lawyers, our experienced family law team can help you understand your rights and responsibilities, negotiate practical parenting arrangements, prepare parenting plans and consent orders, and represent you if court proceedings become necessary, always with your children’s best interests at the centre. If you are navigating separation and need clear, compassionate advice, contact Owen Hodge Lawyers on 1800 770 780 or visit owenhodge.com.au to arrange a consultation.
This article provides general information only and does not constitute legal advice. It is not a substitute for advice tailored to your particular circumstances. Family law is complex and the law may change; you should obtain advice from a qualified legal practitioner before making any decisions. Liability limited by a scheme approved under Professional Standards Legislation.