When parents disagree about children, it is common for each parent to feel that their proposed arrangement is the fair one. The Court asks a different question: what arrangement is in the child’s best interests?
The quick answer is that the child’s best interests are the paramount consideration in parenting orders. The current law focuses on safety, the child’s needs, the child’s views where available, each carer’s capacity, and the benefit of relationships with parents and significant people where those relationships are safe.
The legal starting point
The best-interests rule comes from the Family Law Act 1975 (Cth). Section 60CA says that, when deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration.
The detailed framework is in s 60CC. This section was replaced by the 2024 parenting reforms. Older language that split the test into two tiers should no longer be used as the current test.
That change matters. The Court does not start from a presumption that parents should have equal shared parental responsibility or equal time. Those old pathways have been removed. The Court looks at the particular child, the particular risks and the particular arrangements proposed.
If you need advice about how this applies to your matter, our parenting arrangements service explains how we help clients assess options and evidence.
Safety is central
Under s 60CC, the Court must consider what arrangements would promote the safety of the child and each person who has care of the child. Safety includes safety from family violence, abuse, neglect or other harm.
The Court must also 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.
This does not mean every allegation leads to no time. It means risk must be examined carefully. In some cases, safe time can occur with conditions, supervision, supported changeover, communication limits or a staged increase. In other cases, the evidence may support more protective orders.
The child’s views
The Court must consider any views expressed by the child. A child’s views may be available through a family report, an Independent Children’s Lawyer, or another method the Court considers appropriate.
A child is not required to express a view. The weight given to a view depends on the child’s age, maturity, circumstances, whether the view appears independently held, and whether the child has been exposed to pressure or conflict.
Parents should be careful about asking children to choose sides. Pressuring a child for a view, recording them, or involving them in adult conflict can damage the child and may harm the parent’s case.
The child’s needs
The Court considers the child’s developmental, psychological, emotional and cultural needs. This is broader than where the child sleeps. It includes routine, schooling, health, identity, community, culture, support networks, special needs and emotional security.
For very young children, routine and attachment may be important. For school-aged children, practical matters such as travel, activities, homework and friendships may matter. For teenagers, autonomy and expressed views may carry more practical weight, although the Court still assesses best interests.
For Aboriginal or Torres Strait Islander children, s 60CC includes additional cultural considerations. The Court must consider the child’s right to enjoy their culture through connection with family, community, country and language, and the likely impact of any proposed order on that right.
Each person’s capacity to care
The Court considers the capacity of each person who has, or is proposed to have, parental responsibility to provide for the child’s needs. This is not about which parent is perfect. It is about practical capacity.
Relevant evidence may include who manages school, medical care, routines, communication, emotional support, transport, cultural connection and family relationships. The Court can also consider whether a person can support a safe relationship between the child and other significant people.
Capacity is affected by conduct. A parent who ignores safety concerns, exposes the child to conflict, refuses reasonable communication or breaches orders may weaken their position. A parent who is reliable, child-focused and realistic is usually easier for the Court to trust.
Relationships with parents and significant people
The Court considers the benefit to the child of being able to have a relationship with parents and other significant people, where it is safe to do so. This recognises that children often benefit from meaningful relationships, but safety comes first.
Significant people may include grandparents, siblings, step-parents, extended family members or others who play an important role in the child’s life. The question is not whether an adult wants contact. The question is whether the relationship benefits the child and can occur safely.
Our article on what parenting orders can cover explains how those relationships can be reflected in orders.
Evidence that helps the Court
Good evidence is specific and practical. It may include school records, medical documents, family violence orders, messages about arrangements, records of care, photographs of relevant circumstances, travel information, and reports from professionals where appropriate.
General attacks on the other parent are rarely useful. The Court needs to understand what happened, how it affects the child, what risk or need it creates, and what order would address it.
If you are proposing a parenting arrangement, explain how it will work. Cover changeover, school, activities, health, holidays, communication and decision-making. A clear plan is usually more persuasive than a broad request for more time.
Consent orders and the best interests test
Parents sometimes assume that if they agree, the Court will simply approve the proposed parenting orders. Consent matters, but the Court still has to consider whether the proposed orders are appropriate.
For consent orders, the Court may, but is not required to, consider all or any of the s 60CC matters. In practice, the application should still explain why the arrangement is safe and child-focused, especially if there are family violence issues, unusual arrangements, non-parent carers or conditions about communication.
Agreement is strongest when it is specific. Orders should avoid vague promises and should give enough detail for both parents to understand what happens during school terms, holidays, special occasions and disputes.
The next step
The best-interests test is practical, not theoretical. It asks what arrangement will best protect and support this child, in this family, on this evidence.
Early advice can help you identify the right evidence and avoid relying on outdated law.