How The Court Decides Parenting Matters

In the making of any Parenting Orders, including Orders which prescribe who a child lives with, who a child spends time with, communicates with, the Court must regard the best interests of the child as the paramount consideration.

The overriding factors set out in the Family Law Act which demonstrate the purpose of the legislation as to arrangements for children upon separation of their parents are as follows:

  • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and 
  • protecting children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence; and 
  • ensuring that children receive adequate and proper parenting to help them achieve their full potential; and 
  • ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children; and
  • children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and 
  • children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and 
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and 
  • parents should agree about the future parenting of their children; and
  • children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture.

It is against these fundamental principles that the Court will determine the best interests of the child. 

  • Since 1 July 2006 , the Family Law Act has been amended to provide that there is a presumption of equal shared parental responsibility. This presumption can only be displaced in limited circumstances including where there are instances of family violence or child abuse. Equal Shared Parental Responsibility is explained in our fact sheet entitled ‘Making Long–Term Decisions For Children –Equal Shared Parenting Responsibility ”. 
  • Provided that the presumption is not displaced, the Court must consider an Order where the children spend equal time with each parent or alternatively an Order where the children spend “significant or substantial” time with each parent. A number of factors are set out in the Family Law Act which help the Court determine what is in a child's best interest these include:

Primary considerations 

  • the benefit to the child of having a meaningful relationship with both of the child's parents; and 
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Additional considerations 
  • any views expressed by the child and any factors (such as the child's maturity 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 other persons (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 likely effect on the child of any 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 and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; 
  • Cultural considerations if the child is an Aboriginal child or a Torres Strait Islander child 
  • The extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents: has taken, or failed to take, the opportunity: 
    • to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child. 
    • has facilitated, or failed to facilitate, the other parent: 
      • participating in making decisions about major long-term issues in relation to the child, spending time with the child and communicating with the child. 
    • has fulfilled, or failed to fulfil, the parent's obligation to maintain the child. 
  • to events that have happened, and circumstances that have existed, since the separation occurred. 
  • The Court must also consider whether an Order providing that the children spend equal time with both parents or significant and substantial time with both parents is “reasonably practicable”. The Court will consider the following factors in determining the reasonable practicality of a 
  • proposed Order:-
    • how far apart the parents live from each other;
    • the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; 
    • the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and 
    • the impact that an arrangement of that kind would have on the child. 
  • In many disputes concerning children some of the above factors are more relevant than others depending upon the particular facts of the case. 
  • It is important to always remember that the Court has a wide discretion to make the order that they think is the most proper and that is in the best interests of the child. 
  • Parenting Orders are never final, but if you or your partner wish to change the Orders, then you can do so by agreement but if you don't agree then you must satisfy the Court that a change in circumstances has occurred (since the Parenting Orders were made) that warrants the Court changing the Orders.