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

Section 60CA — the paramount consideration

Section 60CA provides that when a court is deciding whether to make a particular parenting order it must regard the best interests of the child as the paramount consideration. That paramountcy is directed to the outcome — which order is in the child's best interests — rather than to every preliminary or procedural question that arises in a case.

Section 60CC(2) — the general considerations

In determining what is in the child's best interests the Court must consider the following matters:

• what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child, and each person who has care of the child;
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for those needs;
• the benefit of the child having relationships with the child's parents and other people who are significant to the child, where safe to do so; and
• anything else relevant to the circumstances of the child.

The section is not exhaustive, and the weight given to each consideration depends on the facts. Safety carries particular weight and is not weighed against other factors as an equal.

Section 60CC(2A) — family violence, abuse and neglect

The Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child's family. The current framework is oriented to protection from harm.

Section 60CC(3) — Aboriginal and Torres Strait Islander children

For Aboriginal and Torres Strait Islander children the Court must additionally consider the child's right to enjoy Aboriginal or Torres Strait Islander culture, and the likely impact of any proposed parenting order on that right and on the child's connection with family, community, culture, country and language.

What the amendments removed

The former structure that distinguished "primary" and "additional" considerations, the presumption of equal shared parental responsibility, and the pathway requiring the Court to consider equal or substantial and significant time have all been repealed. Older commentary suggesting equal time as a starting point, or a "shared parenting" presumption, does not reflect current Australian law.

Parental responsibility and joint decision-making

Section 61B defines parental responsibility as all the duties, powers, responsibilities and authority that, by law, parents have in relation to children. Under the current framework parental responsibility can be allocated as sole or joint, with the Court making orders that fit the family's circumstances.

Where an order provides for joint decision-making on major long-term issues, section 61DAA requires the parents to consult each other and make a genuine effort to come to a joint decision. Major long-term issues include education, religious and cultural upbringing, health, name, and living arrangements that make time with a parent significantly more difficult. Day-to-day decisions are generally made by the parent with whom the child is spending time.

Time arrangements

The amount of time a child spends with each parent is determined by best interests on the facts of each case. Common arrangements range from primary care with one parent and structured time with the other, through week-about or variations of shared care, to arrangements with limited or supervised contact where the evidence warrants it. There is no presumption in favour of any particular arrangement.

Views of the child

A child's views are a mandatory consideration. Weight depends on the child's age, maturity and level of understanding, and the circumstances in which the views were formed. There is no fixed age at which a child chooses. Views are usually communicated through a family report writer, a Court Child Expert, an Independent Children's Lawyer or, occasionally, direct evidence. Children generally do not give evidence in Court.

Independent Children's Lawyer

The Court can appoint an Independent Children's Lawyer (ICL) to represent and promote the child's best interests. An ICL is not the child's ordinary instructed solicitor. Section 68LA sets out the ICL's duties, including forming an independent view of the child's best interests and taking steps to meet with the child and give them an opportunity to express views, subject to statutory exceptions such as very young age, exceptional circumstances or where the child does not wish to meet.

Family reports and expert evidence

Family reports, Child Impact Reports and single expert reports have fact-specific roles under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The Court manages expert evidence actively and its use is proportionate to the issues in dispute.

Interim orders and safety

Interim parenting orders address short-term arrangements while a case moves through the Court. Safety is the leading consideration on interim applications and, where family violence or abuse is alleged, the Court can make protective orders including supervised time, no-contact conditions and section 68B injunctions. A Victorian Family Violence Intervention Order and parenting orders can be integrated so that they operate together.

Section 65DAAA — reconsidering final orders

Section 65DAAA sets out the requirements for reconsidering a final parenting order. The Court must be satisfied that, since the final order was made, there has been a significant change in circumstances, and that reconsideration is in the child's best interests, having regard to the factors set out in the section. It is not a generic "change as a child grows" rule.

Family Dispute Resolution and section 60I

Family Dispute Resolution with an accredited practitioner and a section 60I certificate is a precondition to filing most parenting applications, subject to exceptions for consent orders, urgency, family violence or child abuse (or a risk of either), incapacity, particular contravention or variation applications, and other prescribed circumstances.

Getting help

Our family law team advises separating parents on parenting arrangements, consent orders, contested Court applications and safety responses under the current statutory framework.

Frequently Asked Questions

How Parke Lawyers Can Help

Parke Lawyers' Family Law team acts for separating parents, grandparents and other significant carers across Australia on parenting matters — first advice, family dispute resolution, consent orders, contested interim and final proceedings, variation and appeals. Engage us early so the relevant evidence and best-interests issues can be identified and presented from the outset.