How does the best interests of the child affect Family Court matters.

When Australian courts, including the Federal Circuit and Family Court of Australia (FCFCOA), are asked to make Parenting Orders by consent (i.e., Consent Orders that deal with arrangements for children), the paramount consideration is the best interests of the child.

1. The benefit to the child of having a meaningful relationship with both of their parents: The law recognises that it is generally in a child’s best interests to have both parents involved in their lives, including how they spend time with each parent, provided it is safe to do so.
2. The need to protect the child from any physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence: This factor is given greater weight than the benefit of a meaningful relationship if there is a conflict between the two. Child safety is paramount, especially where there are risks of child abuse.

• The views expressed by the child and any factors (which may include the child’s age, maturity and/or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

• The nature of the relationship of the child with each of the child’s parents and with significant people in the child’s life (including any grandparent or other relative of the child).

• The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

• The likely effect of any changes in the child’s circumstances, including the impact on the child’s life and the child’s living arrangements, and the likely effect on the child of separation from:

• Either of his or her parents, or
  • Any other child, or other person (including any grandparent or other relative of the child), with whom he or she 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 affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

• The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

• The maturity, sex, lifestyle and background (including lifestyle, culture, traditions, cultural identity and cultural upbringing of the child and either of the child’s parents) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

• If the child is an Aboriginal child or a Torres Strait Islander child:

• The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

• The likely impact of any proposed parenting order under this Part will have on that right.

• The attitude to the child and to the responsibilities of parenthood is demonstrated by each of the child’s parents.

• Any family violence involving the child or a member of the child’s family.

• If family violence orders apply, or have applied, to the child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the circumstances in which the order was made, the evidence (if any) on which the order was based, any safety concerns, and any other relevant matter.

• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
• Any other fact or circumstance that the court thinks is relevant.
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• The Court will consider the information provided by the parents in their application, including practical considerations, which should implicitly or explicitly address how the proposed arrangements meet the child’s needs and support the child’s wellbeing in light of these factors.
• If the Court has concerns that the proposed orders are not in the child’s best interests (e.g., if they seem to expose a child to risk, or don’t adequately consider the child’s relationship with both parents where safe), it may:
• Ask for more information.
• Suggest changes to the proposed orders.
• In some cases, refuse to make the orders as proposed and list the matter for a short hearing or direct parents to family dispute resolution.

How the Court Considers the “Best Interests” (The Core Framework)

• Safety: The primary consideration is promoting the safety of the child and any person providing care (including protection from family violence, abuse, neglect, or harm).
• The Child’s Views: The court considers any views expressed by the child, giving them direct weight based on their understanding and maturity, without requiring rigid secondary proofs.
• Developmental, Psychological, Emotional, and Cultural Needs: A holistic evaluation of the child’s specific well-being requirements.
• Parental Capacity: The capability of each proposed caregiver to actually provide for those developmental, emotional, and cultural needs.
• The Benefit of Relationships: The benefit to the child of having a relationship with both parents and other significant people (like grandparents or siblings), provided it is safe to do so.
• Catch-all Provision: Any other fact or circumstance relevant to the specific child.
• Cultural Connection: For Aboriginal or Torres Strait Islander children, a dedicated requirement to consider their right to enjoy and connect with their culture, language, and community.

How It Has Changed Over Time

The Historic Era (Pre-2006)

The 2006 Reforms (The “Shared Time” Confusion)

• The Flaw: If ESPR applied, the Act forced judges to mechanically consider whether the child spending equal time or substantial and significant time with both parents was reasonably practicable and in their best interests.
• The Consequence: This created a widespread, incorrect public perception that parents had a “legal right to 50/50 shared time.” It frequently fueled high-conflict litigation, trapped families in unworkable parallel parenting arrangements, and sometimes compromised child safety in the pursuit of mathematical equality.

3. The Landscape and Opinion in 2026

We are now firmly entrenched in the post-reform era established by the Family Law Amendment Act, which commenced on 6 May 2024. The prevailing consensus among practitioners, independent experts, and the judiciary focuses on simplification, safety, and individualisation.

The Death of the Presumption

There is no longer any legal presumption of equal shared parental responsibility, nor is there any legislative mandate forcing the court to automatically consider equal or substantial time.

A Bespoke, Safety-First Approach

The “meaningful relationship” factor no longer shares a top-tier pedestal with safety. Safety is overwhelmingly the gatekeeper. The 2006 two-tier hierarchy of factors is gone. The court now treats the 60CC criteria as a flat, holistic matrix. This has paved the way for more flexible, tailored parenting orders, such as granting one parent sole responsibility for medical decisions while sharing educational decisions, depending entirely on the dynamics of the family.

4. Practical Implementation: Consent Orders & Family Law

Because the legislation has stripped away the default template of “50/50 split,” drafting and applying for Consent Orders or navigating litigation requires a meticulous, evidence-backed approach.

Drafted Consent Orders

When parents reach an agreement out of court and submit an Application for Consent Orders, the court does not just rubber-stamp it. Registrars and Judges review the proposed minutes against the new Section 60CC factors.

• The “Why” Matters: Applications must clearly articulate why the agreed time split and decision-making structure align with the children’s specific practical, developmental, and emotional needs.

• Consultation Clauses: While the presumption of ESPR is gone, the Act still encourages joint decision-making where safe. Practical orders now utilise distinct “consultation clauses,” explicitly defining how parents must notify and discuss major long-term issues (health, education, religion) with plain-English mechanisms for dispute resolution if they hit a deadlock.

Fact-Finding & Material Evidence

In contested tracks, affidavits cannot rely on vague assertions of “parental rights.” Evidence must tie directly back to parental capacity and child safety. The courts place heavy reliance on Family Reports and independent single-expert witness evaluations to assess the psychological and emotional landscape of the family units.

Where an Independent Children’s Lawyer (ICL) is appointed to represent the child’s best interests in complex or high-conflict matters, they now face a strict statutory obligation to meet directly with the child and give them a voice (if the child is over 5 and wishes to speak), ensuring the child’s view is directly injected into evidence rather than filtered solely through adult conflict.

Re-opening Final Orders (The Rice & Asplund Rule)

The common law rule from Rice & Asplund—stating that final parenting orders cannot be reopened unless there has been a significant change in circumstances—has now been codified. Under the current law, the court will not reconsider a final parenting order unless a significant change occurs and doing so is in the best interests of the child, thereby preventing vexatious or continuous litigation from disrupting the child’s stability.