Best Interests of the Child: How Australian Courts Decide Parenting Matters

Direct Answer

Australian courts decide parenting matters by applying the best-interests test in section 60CA of the Family Law Act 1975 (Cth). The test is worked out through the factors in section 60CC (as substituted from 6 May 2024) — safety, the child’s views, the child’s developmental, psychological, emotional and cultural needs, the capacity of each proposed carer to meet those needs, the benefit of relationships with parents and other significant persons where safe, and anything else relevant. When considering safety under section 60CC(2)(a), section 60CC(2A) directs the Court also to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order applying or that has previously applied to the child or a member of the child’s family. For Aboriginal and Torres Strait Islander children section 60CC(3) adds a distinct consideration concerning the child’s right to enjoy Aboriginal or Torres Strait Islander culture and connection with family, community, culture, country and language. Safety is the leading factor, but no single factor automatically decides the case. Equal time and equal shared parental responsibility are not presumed. Parents do not have an enforceable right to any particular quantity of time — the child’s best interests govern. Evidence, workable proposals and honest engagement with any risks weigh more than assertion or advocacy.

Contents

• What “best interests of the child” means
• Why the child’s interests are paramount
• Best interests versus parental preferences
• The current post-2024 statutory framework
• Why the former framework must not be used
• How the factors work together
• Best-interests framework table
• Safety from family violence, abuse, neglect and other harm
• Assessing disputed allegations and procedural fairness
• Interim risk management
• The child’s developmental, psychological, emotional and cultural needs
• Each carer’s capacity
• Relationships with parents, siblings and significant persons
• Children’s views
• Cultural identity
• Aboriginal and Torres Strait Islander children
• Practicality of proposed arrangements
• Equal time and parental responsibility
• Interim hearings versus final hearings
• Evidence in parenting proceedings
• Practical parenting proposals
• Worked examples
• Common mistakes
• Practical preparation checklist
• When legal advice is urgent
• How Parke Lawyers can help
• Frequently asked questions

What “Best Interests of the Child” Means

“Best interests of the child” is a statutory test, not a slogan. When the Federal Circuit and Family Court of Australia is asked to make a parenting order under Part VII of the Family Law Act 1975 (Cth), it must, under section 60CA, treat the best interests of the child as the paramount consideration. It works out what those best interests require by considering the factors in section 60CC. The test is directed at arriving at arrangements that will actually meet this child’s needs — for safety, for care, for relationships, for education, for cultural continuity and for the developmental tasks of the years ahead.

The test is child-specific. Two families with the same broad configuration — separated parents, two children, similar work patterns — can produce very different best-interests conclusions on the evidence. There is no standard order. There is no default template that passes the test by copying. Every case is decided on the child’s own circumstances.

The test is also protective. It exists because the people best placed to speak for a child in Court are not always in a position to do so, and because the interests of the child do not always align with the preferences of either parent. The paramountcy principle is the mechanism that keeps the child, and not the adults’ grievances, at the centre of the analysis.

Why the Child’s Interests Are Paramount

The word “paramount” is deliberately stronger than “primary”. Section 60CA elevates the child’s best interests above every other consideration in parenting decisions. That has practical consequences.

It means, first, that adult convenience does not control the outcome. A schedule that works around one parent’s employment or lifestyle is only acceptable to the extent that it also meets the child’s needs. It means, secondly, that historical grievances between the adults, however genuinely felt, are not the point. The Court is not allocating blame for the breakdown of the relationship; it is deciding what should happen next for the child. It means, thirdly, that the child’s best interests displace even sincere parental preferences where the evidence establishes that those preferences would harm the child or would not meet the child’s needs.

The paramountcy principle also shapes how the Court engages with evidence. Evidence that goes directly to the child’s safety, relationships, needs, views and cultural continuity is central. Evidence that goes to adult grievances, adult finances (except where they affect parenting capacity) and adult conduct outside the parenting frame carries much less weight.

Best Interests Versus Parental Preferences

Parents commonly frame their case in terms of what they want or what they think is fair as between themselves — equal time, equal decision-making, the child’s surname, the school of one parent’s choice, a particular religion, a particular routine. The best-interests test does not treat those preferences as the answer. It treats them as inputs. The Court asks whether the arrangement contended for would meet the child’s needs, taking each parent’s capacity, the child’s views and the practical realities into account.

The consequence is that credible parenting proposals are child-focused. They start with the child’s routine, school, health, community and relationships, and they explain how the proposal supports each of those. Proposals that start from what the adult wants and try to justify it after the fact tend to read as what they are. That does not mean parents should not put forward their preferred arrangements — it means those arrangements need to be framed in the child’s terms.

The Current Post-2024 Statutory Framework

The Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024 and materially reshaped Part VII. Three changes are particularly relevant to the best-interests analysis.

First, section 60CC was substituted. The former list of two “primary” considerations (the benefit to the child of a meaningful relationship with both parents; the need to protect the child from harm) and thirteen “additional” considerations, together with the statutory instruction to give greater weight to protection from harm where the two primary considerations conflicted, was removed. A single simplified list of six considerations in section 60CC(2) applies in every case. When considering safety under section 60CC(2)(a), section 60CC(2A) requires the Court also to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order applying or previously applying to the child or a member of the child’s family. Section 60CC(3) adds an additional consideration for Aboriginal and Torres Strait Islander children.

Second, the presumption of equal shared parental responsibility in the former section 61DA was repealed. Parental responsibility for major long-term decisions is now allocated by the Court on a case-by-case basis by reference to the child’s best interests. Joint decision-making is one of several possible orders, not the default.

Third, the obligation in the former section 65DAA to consider equal time or substantial and significant time where the presumption of equal shared parental responsibility applied was repealed. There is no default time allocation. Time arrangements are decided by reference to the best interests of the child.

The reforms also introduced other structural changes — a statutory obligation on Independent Children’s Lawyers to meet with the child (subject to defined exceptions), a restructured contravention regime that emphasises graduated responses, and reforms to information-sharing between family courts, child-protection agencies and police. The overall effect is to reorient the parenting framework around the child and around safety, and away from the presumption-driven structure that operated between 2006 and 2024.

Why the Former Framework Must Not Be Used

A large body of older commentary, precedent and template material was written under the former framework and continues to circulate. Older textbooks speak of “primary considerations” and “additional considerations”. Older calculators and consent-order templates assume that equal time is the starting point where equal shared parental responsibility applies. Older articles quote the former section 60CC(2)(a) and (b) as if they remained the two overriding factors. Older cases turn on features of the former framework that no longer operate.

None of that reflects Australian law after 6 May 2024. Parents and practitioners who rely on the former framework in current proceedings will be corrected by the Court, will present affidavits that focus on the wrong considerations and will risk drafting orders that no longer reflect the statutory framework. The rest of this article is written for the current framework.

How the Factors Work Together

The section 60CC factors are not a checklist to be ticked off in isolation. They interact. Safety concerns affect the workability of proposed arrangements. Practical arrangements affect the child’s developmental and emotional needs. Cultural continuity affects identity and belonging. A child’s views are formed within relationships and cultural context. Each carer’s capacity is measured against the child’s actual needs, not against an abstract standard.

The Court considers the factors together, weights them against the specific facts and reaches a best-interests conclusion. Two features of that weighing are worth noting. First, safety operates as the leading consideration — it is listed first in section 60CC(2)(a), it is reinforced by the surrounding reforms and by the definition of family violence in section 4AB, and it will ordinarily be decisive where a proposed arrangement fails to meet it. Second, no single other factor is automatically decisive. A child’s expressed preference, a parent’s historical caregiving role, a difficult diagnosis, a long commute or a cultural claim can each be significant in a given case without necessarily determining the outcome.

Best-Interests Framework Table

The following table summarises the current statutory framework, the practical question each factor raises, examples of evidence and common misunderstandings. It is a summary, not a substitute for advice on a particular case.

Safety from Family Violence, Abuse, Neglect and Other Harm

Safety is the leading consideration under the current framework. Section 60CC(2)(a) requires the Court to consider what arrangements would promote the safety of the child and the child’s carers, including from family violence, abuse, neglect and other harm. The definition of family violence in section 4AB is broad and covers behaviour that is violent, threatening or otherwise coerces or controls a member of the person’s family, or causes a family member to be fearful.

Physical safety. Physical assault, threats and unsafe environments are the clearest expressions of a safety concern. Evidence includes hospital and general practitioner records, contemporaneous communications, photographs, police narratives and independent witness affidavits.

Psychological and emotional safety.Section 4AB expressly includes psychologically or emotionally abusive conduct. Sustained denigration, intimidation, threats to withdraw affection or resources, controlling or humiliating conduct and using a child as a weapon against a parent all affect the child, whether or not there has been a physical incident.

Coercive control and exposure to conflict.Coercive-controlling behaviour is family violence for the purposes of the Family Law Act, and courts approach it as a pattern rather than a series of unconnected events. Exposure of a child to sustained conflict between the adults, even where the conflict is not directed at the child, is treated as a harm the child experiences.

Neglect and inadequate supervision.Failure to provide adequate food, clothing, hygiene, supervision, medical care or safe accommodation is neglect, and neglect is within the safety consideration.

Sexual abuse allegations. Allegations of sexual abuse require particular care. They must be fairly disclosed, particularised, supported by any available objective material and assessed by the Court. The Court does not treat allegations as proved because they have been made, but it also does not treat them as unfounded because they are contested. Interim orders frequently manage the identified risk pending final hearing.

Risk posed by other household members.The safety consideration extends beyond the parent to other adults in the household — new partners, housemates, extended family — and to the child’s exposure to any risk those persons pose.

Substance use. Current substance use that affects supervision, judgement or safety is a real risk. Historical or occasional recreational use in the absence of any current impact on the child is treated differently. Safeguards such as random drug and alcohol testing (where properly framed), no-use-during-care conditions, supervised time and staged progression are available where the evidence supports them.

Mental health evidence. Mental health, as with substance use, is examined for its actual effect on parenting capacity. A well-managed condition with insight and adherence to treatment may have no practical bearing on the arrangements. A disabling and untreated condition may materially affect what is safe or workable. Evidence from treating clinicians, and where necessary independent experts, is usually required.

Family violence orders. A family violence intervention order (in Victoria) or its equivalent elsewhere is admissible evidence and is treated as relevant, but it does not, of itself, determine the parenting outcome. The Court considers the terms of the order and any findings on which it was based, together with all other evidence, and frames parenting orders that operate consistently with the intervention order. For the Victorian intervention order process see our guide to family violence intervention orders in Victoria, and for the section 60CC safety analysis in family- violence parenting matters see our specialist guide on safety safeguards in parenting proceedings.

Police and child-protection involvement.Police narratives, LEAP records (Victoria) and child-protection agency records are useful where they are contemporaneous and where they have been lawfully obtained or released under the applicable protocols. Their absence does not necessarily mean the alleged events did not occur, but their presence adds substantial weight where they support the account.

Assessing Disputed Allegations and Procedural Fairness

Parenting cases very often involve serious allegations that are contested. The best-interests analysis is not paralysed by that reality, but it is disciplined by it. The Court does not treat allegations as proved because they have been made. Nor does it treat them as unfounded because they are contested. Both overstatement and minimisation of risk can damage a case.

Procedural fairness requires that allegations be fairly disclosed, particularised and given to the respondent in time to answer. Where allegations are made in an interim affidavit that were not raised at pre-action stage, or that are put in vague terms, they carry less weight than allegations that are particular, contemporaneous and supported by objective material. At final hearing the evidence is tested by cross-examination and by comparison with expert and independent material, and the Court makes findings on the balance of probabilities.

The absence of contemporaneous reporting or corroborating material does not prove that an allegation is false — underreporting of family violence is well documented and the Court is alive to that. But a case built on unparticularised assertion, uncorroborated at every level, is harder to advance than a case built on a careful account supported by contemporaneous records.

Interim Risk Management

At the interim stage the Court manages risk on limited evidence. Its ordinary approach is to adopt the arrangement that best protects the child from unacceptable risk while preserving relationships and future options for a final hearing. That may mean supervised time, supervised changeover, no-contact conditions, communication restrictions, a staged return to unsupervised time, or short-term maintenance of an existing arrangement.

Supervised time. Time may be supervised by a professional contact centre, by an agreed adult or by another arrangement approved by the Court. Supervision is a risk-management tool, not a permanent state; the aim is usually to move to unsupervised time as the risk is understood and managed, unless the evidence at final hearing establishes that unsupervised time is not appropriate.

Safe changeovers. Where there is conflict, family violence or safety risk at changeover, the Court can require changeover at a public place, at a police station, at a contact centre or through a third party. It can prohibit particular persons from attending changeover and can regulate communication at that point.

Communication controls. The Court can regulate communication between the parents and between the parent and the child — the medium, the timing, the content and the involvement of third parties. Orders can require communication only in writing, only through a co-parenting application or only in relation to defined subjects.

The Child’s Developmental, Psychological, Emotional and Cultural Needs

Section 60CC(2)(c) directs the Court to consider the developmental, psychological, emotional and cultural needs of the child. This factor is often underestimated. It is not a general assertion that children need “stability” or “love”; it is a specific inquiry into what this child actually needs at this age, in this family, in this community, with this history.

Emotional and psychological needs.These include attachment, security, emotional regulation, identity formation, opportunities to express and process feelings, and freedom from exposure to adult conflict and litigation. Evidence comes from treating clinicians, family reports, school welfare and counselling material, and observations of the child in the care of each parent.

Educational needs. The child’s school, teachers, peer group, attendance and academic trajectory are central. Proposals that disrupt an established school placement, or that place the child in a long daily commute, are not automatically ruled out but require child-focused justification.

Medical and therapeutic needs.Ongoing medical care, therapy, medication and specialist appointments must be sustainable in the proposed arrangements. Parents jointly making decisions about long-term treatment need to be able to reach a genuine decision under section 61DAA; sole-decision-making orders may be appropriate where the evidence establishes that joint decision-making will not work in the child’s interests.

Disability and additional needs.Children with disability or additional needs require arrangements that support therapy, education, NDIS or state disability supports and the child’s personal routines. Practical evidence from the treating team is often decisive.

Stability and continuity. Continuity of care, of school, of home, of community and of significant relationships is generally protective. The Court is cautious about arrangements that disturb continuity without a clear child-focused reason. That does not mean the status quo is always preserved — change is often necessary — but changes are considered in the child’s terms.

Routine and predictability. Children typically do better in predictable arrangements. Orders that leave key questions (when the child moves between homes, who picks up from school, who attends medical appointments) to ongoing negotiation between high-conflict adults create instability the child pays for.

Attachment and caregiving history.Who has done the actual work of caring for the child over the child’s life — the school runs, the medical appointments, the therapy attendance, the homework, the routines — is evidence about attachment, insight and capacity. It does not create a preference for a “primary carer”, but it does inform the analysis under sections 60CC(2)(c) and (d).

Each Carer’s Capacity

Section 60CC(2)(d) requires the Court to consider the capacity of each proposed carer to provide for the child’s developmental, psychological, emotional and cultural needs. Capacity is measured by evidence of actual functioning, not by aspirations or good intentions.

Insight into the child’s needs.A parent who can articulate the child’s temperament, friendships, health, therapy, school progress, cultural connection and worries is presenting evidence of insight. A parent whose affidavit is largely about the other parent, and rarely about the child, is presenting evidence of a different kind.

Ability to support relationships where safe.The capacity of a parent to support the child’s relationship with the other parent, where it is safe to do so, is relevant. That is not a requirement to actively promote a relationship that puts the child at risk; nor is it a demand for forced cooperation between parents who cannot cooperate. It is a consideration of whether the child is being permitted to have a safe relationship with the other parent, and whether the child is being drawn into adult conflict.

Practical caregiving capacity. Actual evidence of the parent’s ability to run a household, get the child to school, meet medical and therapy appointments, prepare meals and manage behaviour is important. So is the parent’s support network and their use of appropriate professional and community supports.

Work commitments and availability.Rosters, shift patterns, on-call arrangements and travel commitments affect what the parent can actually provide. Proposals that place the child predominantly in the care of paid carers or extended family during the proposed parent’s time need to be examined.

Housing and transport. Housing adequate for the child — appropriate sleeping arrangements, safety features, proximity to school and care — matters. So does the practicality of transport between homes, school and activities.

Communication between carers. The capacity of the parents to communicate effectively about the child affects the workability of joint decision-making and of shared care. Where communication has broken down, structured communication (co-parenting applications, written-only exchanges, defined-subject communication) may be a workable answer; sole decision-making may be another.

Compliance with professional recommendations.A parent who complies with recommendations from the child’s treating team, from a family report writer or from an Independent Children’s Lawyer is presenting evidence about capacity and insight. Selective compliance and disregard for professional advice cut the other way.

Relationships with Parents, Siblings and Significant Persons

Section 60CC(2)(e) requires the Court to consider the benefit to the child of being able to have a relationship with the child’s parents, and with other people significant to the child, where it is safe to do so. That factor operates in every case, but it is qualified by the safety consideration in section 60CC(2)(a). Where the evidence establishes that a particular relationship cannot be safely maintained, the benefit consideration cannot override that.

Relationships with parents. The starting position is that a child usually benefits from a relationship with each parent, where that relationship is safe. Time, communication and decision-making structures are then designed to give effect to the relationship on the terms the child can safely enjoy it.

Relationships with siblings. Sibling relationships are typically central to a child’s life. Orders that separate siblings are unusual and need clear justification, and orders that keep siblings together sometimes shape the whole arrangement.

Relationships with grandparents and extended family.Grandparents, aunts, uncles and cousins are frequently “other people significant to the child” for the purposes of section 60CC(2)(e). Section 65C expressly permits grandparents to apply for parenting orders. Where the relationship is real and beneficial, it is a relevant factor, and it can lead to orders for time and communication with grandparents in appropriate cases.

Relationships with step-parents and other significant persons.Step-parents, long-term partners of a parent, close family friends and community members may all be significant persons for the child. The Court is interested in the actual quality and importance of the relationship to the child, not in the label.

When preserving a relationship may not be safe.The best interests test is not a mandate to preserve every relationship. Where safety, coercive control, entrenched high conflict or ongoing risk means that a relationship cannot be maintained safely on any arrangement the Court could make, the Court can suspend time and communication, permanently or until further order.

Children’s Views

A child’s views are a mandatory consideration under section 60CC(2)(b). The Court weighs those views in the light of the child’s age, maturity and understanding and the circumstances in which the views were expressed. Australian law does not fix an age at which a child chooses.

No fixed age of choice. There is no provision of the Family Law Act that gives a child of 12, 14 or 16 the power to decide where they live. A settled and independently formed preference from an older adolescent may carry significant weight, but the weight is a function of the whole picture, not of an age threshold.

Maturity and understanding. The Court considers whether the child understands what is being asked, what the practical consequences of the various arrangements would be for their life, and whether they are able to hold and express views without pressure. Family report writers, Court Child Experts and Independent Children’s Lawyers are well placed to assist the Court on this.

Influence, pressure and loyalty conflict.Children are highly sensitive to the emotional needs of their parents. Where the evidence shows that a child’s stated preference is the product of pressure, coaching, loyalty conflict or estrangement dynamics rather than the child’s own settled view, that reduces the weight the Court gives it.

How views may be obtained. In almost every case the child’s views are communicated to the Court through a Court Child Expert or family report writer, an Independent Children’s Lawyer where one has been appointed, or a Child Impact Report. Parents should not question children about the proceedings, should not ask children to make written statements and should not encourage children to expect that they will speak directly to the judge.

Court Child Experts. Court Child Experts are family consultants employed by or engaged through the Federal Circuit and Family Court of Australia who prepare Child Impact Reports and family reports. They interview the parents and children and provide the Court with an independent professional view.

Family reports. A family report is a more detailed document, usually prepared for final hearing, that describes the family dynamics and the writer’s professional opinion on arrangements that would best meet the child’s needs. Family reports are highly influential and are usually weighted heavily at final hearing.

Independent Children’s Lawyers.The ICL represents the best interests of the child, independently of both parents. Since 6 May 2024 the ICL has a statutory obligation to meet with the child and provide the child with an opportunity to express any views, subject to defined exceptions. For the appointment power, statutory duties, evidence-gathering, confidentiality limits and complaints see our specialist guide to how children’s views may be considered through an Independent Children’s Lawyer.

Cultural Identity

Culture, language and religion are embedded in the best-interests test through the “cultural needs” limb of section 60CC(2)(c) and, in appropriate cases, through the significant-relationships limb of section 60CC(2)(e). Cultural identity is treated as a substantive factor. Proposals that interrupt cultural continuity — language exposure, religious observance, community participation, connection with extended family — need to be justified in the child’s terms.

Language and community. Language use at home, at school and with grandparents is often central to identity. Community — cultural, religious, regional — provides context and belonging. Evidence about how the proposed arrangements support or disturb those things is relevant.

Religious and cultural practices.Where the parents share the child’s religious or cultural practice, arrangements will usually support it. Where the parents disagree about religion or observance, the Court considers the child’s experience of the practice, the significance of the practice to the child and each parent’s engagement. The Court is cautious about becoming an arbiter of religious doctrine and looks at the child in front of it.

Aboriginal and Torres Strait Islander Children

Section 60CC(3) applies where a parenting order will be made in relation to an Aboriginal or Torres Strait Islander child. It requires the Court to consider, in addition to the section 60CC(2) considerations, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and the likely impact any proposed parenting order will have on that right. That right expressly includes the child’s right, in community with other people who share that culture, to maintain a connection with family, community, culture, country and language, and to have the support, opportunity and encouragement necessary to explore the full extent of that culture consistent with the child’s age and developmental level and views, and to develop a positive appreciation of that culture.

The consideration is a distinct statutory factor. It operates alongside — not instead of — the six general considerations in section 60CC(2). Evidence about kinship, community, elders, country and language is treated as substantive evidence, not as background colour. Aboriginal and Torres Strait Islander families are diverse; generalisations about cultural practice are unhelpful, and the Court expects specific evidence about the particular child, family and community.

Where proposed arrangements would move an Aboriginal or Torres Strait Islander child away from country, community and family, that is a significant matter requiring careful evaluation under section 60CC(3) as well as under the general considerations. The Court considers whether the proposal genuinely supports the child’s cultural connection or effectively severs it. There is no substitute for authentic engagement with the relevant community and family in the framing of the proposal.

Practicality of Proposed Arrangements

The Court is deeply interested in whether the proposed arrangement will actually work. Elegantly drafted orders that break down at the first school pickup are not in the child’s best interests.

Distance between homes. Distance affects daily practicality — changeover, school runs, extracurricular activities, medical appointments — and the frequency and quality of time between the child and each parent. Large distances usually reshape the arrangement. Where a parent proposes to move materially further away, the case is treated as a relocation matter — see our specialist guide to how relocation proposals are assessed.

School attendance. Reliable school attendance is protective and shapes the arrangement around term-time routines, before- and after-school care and school-related activities.

Changeovers. Where and how changeover occurs affects the child’s experience. Changeovers at school, at a neutral public place or through third parties can reduce conflict.

Travel burden. The travel burden falls, in the end, on the child. Long weekly commutes for young children are difficult; long changeovers without breaks are difficult; multiple changeovers per week are difficult. Practicality is about the child’s week, not the adults’ convenience.

Sibling arrangements. Where there are siblings, the arrangements need to consider whether siblings should be together and how their needs interact.

Work rosters. The parents’ work schedules affect who is actually caring for the child during the parent’s time. Rostered, on-call and fly-in-fly-out patterns often need arrangements that respond to them rather than the other way round.

Financial practicality without turning the case into a property dispute.Financial capacity to house the child, transport the child and meet the child’s expenses is relevant, but parenting proceedings are not property proceedings. Financial issues are addressed to the extent they affect capacity, not as an accounting exercise. Where a financial arrangement is required, it is handled under the child-support scheme (see our child support assessments and agreements article) or in property proceedings.

Equal Time and Parental Responsibility

The clearest change of the 6 May 2024 reforms is that equal time is not presumed. There is no default arrangement. Equal time is not a parental entitlement, it is not the starting point and it is not required because parents wish it. Where equal time is proposed, it must be safe, workable and consistent with the child’s needs.

The presumption of equal shared parental responsibility was also removed. Parental responsibility is now allocated on the child’s best interests, on a case-by-case basis. Joint decision-making, joint decision-making for some issues, and sole decision-making are all available. Where joint decision-making is ordered, section 61DAA requires the persons who share that responsibility to consult one another and make a genuine effort to reach a joint decision on each major long-term issue, except to the extent the parenting order provides otherwise.

Time arrangements and decision-making responsibility are legally distinct. A parent may have limited time with the child but hold joint parental responsibility; a parent may spend substantial time while another person holds sole parental responsibility. The arrangement is designed for the child, not for symmetry.

Day-to-day decisions — meals, clothing, bedtimes, routines while the child is in a parent’s care — are ordinarily made by the parent with the child at the time, unless the order provides otherwise. Major long-term decisions — education, religion, health (other than routine care), name, where the child lives — are the subject of the parental-responsibility allocation.

Interim Hearings Versus Final Hearings

The best-interests analysis is applied at every stage, but the evidence available differs materially between interim and final hearings. Understanding the distinction helps parents form realistic expectations.

The table is a general guide, not a rule. Some interim hearings are conducted on substantial material and some final hearings turn on relatively narrow evidence. The point is that the Court’s confidence in the evidence, and therefore its willingness to make longer-term findings, grows as the case is tested. Parents who reach an interim hearing expecting the Court to resolve every contested allegation on the affidavits are usually disappointed; parents who understand that the interim stage is about managing risk pending final hearing are usually better prepared.

Evidence in Parenting Proceedings

The evidence that actually assists a best-interests analysis tends to share three features: it is objective, it is contemporaneous and it is directed to the child. Advocacy affidavits, edited or selective communications and material generated for the litigation are treated with more scepticism.

Parents should not: coach children; secretly create misleading evidence; take selective screenshots and present them as complete; edit or crop communications to change their meaning; breach privacy or confidentiality laws; publish identifying information about the child or the proceedings; obtain irrelevant records to embarrass the other parent; exaggerate allegations; or minimise genuine safety concerns. Each of these tends to damage the case that adopts them and to distract from the child’s best interests.

Weighing Children’s Views

The following table is a working guide to how the Court and appropriately qualified professionals typically consider a child’s views. It is a summary and not a mechanical formula.

Practical Parenting Proposals

Practical proposals are child-focused, workable and drafted with sufficient specificity that they operate without further agreement between the parents. The following checklist covers the matters a considered parenting proposal ordinarily addresses.

• School-week arrangements — where the child sleeps each night and how weekly transitions work
• Holidays — Christmas, Easter, mid-year, term-break and long-weekend arrangements
• Special occasions — birthdays, Mother’s Day, Father’s Day, cultural and religious observances
• Changeover — where, when, by whom and with what safeguards
• Transport — who drives, who arranges public transport and where costs sit
• Communication — telephone, video, messaging and social media between the child and the non-resident parent
• Medical care — GPs, specialists, medication and emergency arrangements
• Therapy — psychology, counselling, speech, occupational and other therapies
• Schooling — enrolment, changes of school, engagement with teachers, participation at events
• Extracurricular activities — sport, music, cultural and community activities
• Cultural participation — language, religion, community events, cultural learning
• Sibling time — how siblings spend time together and apart
• Extended family — grandparents, aunts, uncles, cousins, close family friends
• Passports — where held, when applied for, notice requirements
• Travel — domestic and international, notice, itinerary, contact arrangements
• Family violence safeguards — where required by the evidence
• Supervision — where required, by whom, on what basis, and how it may be reviewed
• Drug or alcohol safeguards — where supported by the evidence
• Information sharing — schools, doctors, therapists, activities
• Major long-term decisions — who decides, how disputes are resolved
• Dispute-resolution steps — mediation, family dispute resolution, further orders
• Review mechanisms — how and when the arrangements may be reviewed as the child grows

The checklist is not a universal template. Any proposal must be tailored to the child, the family and the safety context. Copying a template from a case that resolved a different problem for a different family will not, of itself, meet the child’s best interests.

Worked Examples

The following examples illustrate how the best-interests framework operates. They are not legal advice, they do not describe actual clients and they are not predictors of outcomes. Each real case turns on its own facts.

1. Equal time proposed despite a long school commute. One parent proposes week-about care but lives ninety minutes from the child’s established school. The Court considers the practical burden on the child, the impact on school attendance and extracurricular activities and whether the school placement or the proposed arrangement should adjust. The proposal is not automatically rejected but requires child-focused justification.
2. One parent historically providing most daily care. Caregiving history is directly relevant under sections 60CC(2)(c) and (d). It does not create a presumption but it informs the analysis of the child’s needs and each carer’s insight and capacity, and it shapes the transition (if any) to a different arrangement.
3. A child expressing a strong preference to live with one parent. The Court considers the age, maturity, consistency and reasons for the view, whether it appears independently formed and the professional assessment. A settled preference from a mature adolescent may carry significant weight, but weight is a function of the whole picture.
4. Family violence allegations supported by intervention-order material. The intervention order material is admissible and relevant, but not automatically determinative. The Court considers the order, any findings on which it was based and all other evidence, and frames parenting orders that are consistent with the intervention order and with the child’s best interests.
5. Allegations disputed and not yet tested at an interim hearing. The Court will not usually make final findings; it applies a risk-management approach and adopts the arrangement that best protects the child pending final hearing, without prejudice to the final determination.
6. A parent with a mental-health condition functioning well with treatment. A treated, insightful and functionally stable parent is not disqualified by diagnosis. Evidence from the treating team about function and stability is central.
7. Substance-use concerns requiring safeguards. Where current use affects safety, the arrangement may include random testing, no-use-during-care conditions, supervised time and staged progression, with reviews as the evidence develops.
8. Siblings expressing different preferences. Siblings often hold different views, and the Court considers each child’s interests. Where practicable, siblings are usually kept together, but not at the expense of another child’s clear best interests.
9. A child with disability and complex medical needs. The arrangements must sustain therapy, education, NDIS supports and the child’s personal routines. Evidence from the treating team frequently drives the arrangement.
10. Grandparents seeking continued involvement after a parent dies. Section 65C permits grandparents to apply, and section 60CC(2)(e) recognises the benefit of significant relationships. Where the relationship is real and safe, orders for time and communication with grandparents are appropriately made.
11. An Aboriginal child’s proposed move away from community and culture. Section 60CC(3) operates alongside the general considerations. The impact on connection with family, community, culture, country and language is considered as a substantive matter, and requires specific evidence about the particular child, family and community.
12. Parents agreeing on time but not schooling. A specific-issue application resolves the schooling dispute by reference to the child’s best interests, taking evidence from the schools and (where appropriate) a family report.
13. A parent unable to support the child’s relationship with the other parent. Where the evidence establishes a systematic inability or unwillingness to permit the child to have a safe relationship with the other parent, that is a significant consideration in the allocation of time and decision-making, and may in some cases lead to a change in primary care.
14. Supervised time progressing to unsupervised time. Supervision is a management tool. Where the evidence establishes that the risk can be safely managed without supervision, staged progression is often appropriate; where it cannot, supervision may continue on a defined basis.
15. A teenager refusing an existing arrangement. The Court considers whether the refusal reflects the teenager’s independently formed view, whether it reflects safety concerns and whether therapeutic or graduated arrangements would meet the child’s needs.
16. Both parents presenting workable but different proposals. The Court chooses the arrangement it assesses will best meet the child’s best interests, often after taking evidence from a family report writer and (where appointed) an Independent Children’s Lawyer.

Common Mistakes

• Treating best interests as parental fairness. The test is child-focused. What is fair between the parents is not the question.
• Assuming equal time is the starting point. It is not. Equal time is not presumed.
• Using the former statutory framework. The primary/additional structure was repealed on 6 May 2024.
• Overstating a child’s ability to choose. There is no fixed age of choice, and a child’s stated preference is one factor.
• Pressuring a child. Coaching, questioning and drawing the child into the litigation damages the child and the case.
• Relying on vague allegations. Particulars, dates, places and objective corroboration matter.
• Ignoring contrary evidence. A case that engages with the difficulties is more credible than a case that pretends they do not exist.
• Minimising family violence. The definition is broad; safety is the leading consideration; minimising risk damages the case.
• Treating diagnosis as incapacity. Function, treatment and insight matter, not the label.
• Confusing conflict with risk. High conflict between adults is significant, but it is not the same as family violence and it is not automatically decisive.
• Proposing arrangements that are not practical. The Court is interested in what will actually work.
• Ignoring school and travel burdens. The child pays for those, in the end.
• Failing to address siblings. Sibling relationships are usually significant.
• Overlooking cultural identity. Culture is a substantive factor, especially for Aboriginal and Torres Strait Islander children.
• Treating an intervention order as conclusive. It is admissible and relevant, but it does not by itself dictate parenting orders.
• Relying only on hostile messages. Selective screenshots damage credibility; full-thread material is more useful.
• Filing excessive irrelevant material. The Court is interested in what is relevant to the child.
• Seeking orders without a workable care plan. Every substantive order proposal should be accompanied by a workable plan for how it will operate.
• Focusing on grievances rather than the child. Historical adult grievances are not the point.
• Breaching current orders without urgent advice. Unilateral departure from orders, however well intentioned, is usually damaging and sometimes leads to contravention proceedings.

Practical Preparation Checklist

1. Identify the child’s current needs and routines. School, health, therapy, activities, friendships, community.
2. Identify immediate safety issues. Family violence, abuse, neglect, substance use, mental health, and address them first.
3. Obtain current orders and agreements. Parenting plans, consent orders, intervention orders, court orders in other jurisdictions.
4. Prepare a neutral chronology. Dated, factual and directed to the child.
5. Separate verified facts from allegations. Present each with the evidence available.
6. Identify objective records. School, medical, therapy, police, intervention order and communication material.
7. Assess the child’s developmental and cultural needs. With the treating team, cultural community and, where relevant, professional advice.
8. Consider each carer’s practical capacity. Housing, work, transport, support network, insight.
9. Formulate workable proposals. Detailed enough to operate without further agreement.
10. Address schooling, health, transport and changeover. The daily practicalities the child will experience.
11. Address relationships with siblings and significant persons. Grandparents, extended family, community.
12. Consider the child’s views without pressuring the child. Do not question the child or ask the child to make written statements.
13. Identify safeguards where risk is alleged. Supervision, staged progression, testing, changeover arrangements.
14. Obtain appropriate professional evidence. Treating clinicians, family report writers, independent experts where required.
15. Comply with current orders and court directions. Departing from orders without urgent advice usually damages the case.
16. Obtain urgent advice where safety, relocation, recovery or overseas travel is involved.

When Legal Advice Is Urgent

Urgent advice is important where any of the following is in play: immediate risk to the child (family violence, abuse, neglect, threats); a child retained or removed contrary to arrangements; a child taken interstate or overseas without consent; imminent relocation; a disputed passport application; and any step that would breach an existing order. In each of these situations, decisions taken in the first hours and days materially affect what can be done and how the Court views what has happened. Late advice is almost always more expensive and less effective than early advice.

How Parke Lawyers Can Help

Parke Lawyers advises separating parents, grandparents and other significant carers across Australia on parenting matters — from first advice through negotiation, family dispute resolution, consent orders, contested interim and final proceedings, variation and appeals. Our approach is to obtain the right outcome for the child at the lowest cost in money, time and stress — usually by careful negotiation and consent orders, occasionally by contested proceedings where negotiation fails or safety requires it.

Our family-law team is led by Julian McIntyre. For the firm’s broader family-law practice see our Family Law service page, and for the full procedural journey through parenting orders see our national cornerstone guide to parenting orders. For related topics see our guides on parenting arrangements after separation, consent orders and personal safety intervention orders in Victoria.

Frequently Asked Questions