Breaking up is hard to do – and the law doesn’t make it any easier. Parting couples often have to make some of the most difficult choices of their lives while dealing with an oversized dose of emotion and stress. It’s little wonder disputes over the future of children can drive parents to the brink. Myths that circulate about how courts make decisions once the love has gone don’t help. But the law does have a simple, step-by-step framework. And the first question for any judge is whether a proposed arrangement is in the child’s best interests.
What “Best Interests” Actually Means In Practice
The old language of custody and access has been replaced by parental responsibility. The Family Law Act of 1975 states that there are several things the court must consider when making decisions about parenting arrangements. Where the child will live, how much time they will spend with the parent (or another significant person), and how major long term decisions will be made are all guided by the Act.
The Act lists two most important aspects that consolidate other considerations. The first one states that it is in the child’s best interests to have a meaningful relationship with both parents (in so far as it is consistent with the child’s best interests). The second most important consideration is to protect the child from harm. This includes physical and emotional harm and the child being exposed to abuse, neglect or family violence. If there is a conflict between these two, the protection of the child from harm prevails.
The Presumption Of Equal Shared Parental Responsibility – and When It Doesn’t Apply
Starting point is that a court assumes that equal shared parental responsibility is the best thing for a kid. That means both parents are responsible for long-term decisions about their child – for things like education, healthcare, and religion. What it doesn’t mean – and this is one of the most common misconceptions – is kids spending equal time with each parent.
Parental responsibility and time are different things. Equal shared parental responsibility is about who gets a say. Time is a separate question. You work out time based on what’s possible and what’s actually good for the kid.
The assumption can also be knocked over. If there’s a good reason to think that a parent has been violent or abusive, or that assuming equal shared parental responsibility wouldn’t be in the child’s best interests for some other reason, the court doesn’t have to start there.
This isn’t a technicality. In practice, allegations of family violence trigger a specialised screening process, and where those allegations are substantiated, the outcome can look very different from the default arrangement. Supervised time, sole parental responsibility for the protective parent, and restrictions on contact are all possibilities the court can and does order.
What The Court Actually Looks At Beyond The Primary Considerations
After the court has considered those two primary considerations, the additional considerations outlined in s.60CC include:
- The child’s views (given due weight based on age and maturity)
- The nature of the child’s relationship with each parent and with siblings or other significant people
- Each parent’s willingness to support the child’s relationship with the other parent
- Practical factors, such as how far apart the parents live and how that affects arrangements
- Each parent’s ability to provide for the child’s physical, emotional, and intellectual needs
- Whether the proposed arrangement would impact the child’s participation in their current community, school, and activities
The child’s views, in particular, are often misunderstood. Courts do listen to children and young people, and the older a child is, the more weight their stated preferences will have. But what courts do not do is give the decision-making power to the child. A 14-year-old who wants to live with Mum will be listened to, but that preference won’t trump the evidence about what living arrangement is in that child’s best interests. The child’s view is one of the things the court takes into account – not a veto.
“Substantial and Significant Time” – What The Statute Actually Says
When parents can’t agree, the question in practice isn’t “do we think both parents are equally important?”, it’s “how can we make sure this child has regular and ongoing contact that’s meaningful with a parent they won’t be living with, given the specifics of these parents’ lives?”.
That’s going to be a much more factors-based, reality-grounded view than just assuming that a child’s relationship with the parent they see less would be automatically enhanced by more hours. Sometimes, for example, the reverse is true: a parent who’s more available emotionally and physically when they’re present may build a better relationship from less frequent but more engaged time.
Finally, a judge will look at the best interests of the child, which as every lawyer learns (and will frustratingly tell you when you’re splitting up with someone), has a whole list of specific factors in the legislation but ultimately involves some very gut-feel decisions.
The Strong Push Toward Mediation Before Court
Many people don’t realize that the vast majority of parenting disputes in Australia are never heard by a judge. Parents are legally required to at least try Family Dispute Resolution – mediation with a qualified practitioner – before filing parenting proceedings in court in most circumstances (exceptions include family violence, child abuse, and urgency).
If mediation is successful, most parents settle their differences either by recording their agreement in a parenting plan or by applying to the court for consent orders. You have more flexibility to tailor arrangements using either of these mechanisms than you do with a litigated court order, and consent orders come with the same legal authority as orders following a hearing. About 40% of Australian children will witness the separation of their parents before their 18th birthday (Australian Institute of Family Studies) – so the system is designed around the belief that almost all of these families will be better off if they can come to an agreement rather than go to court.
When negotiations aren’t going anywhere, particularly because of outstanding safety concerns, a relocation proposal, or a genuine deadlock over major long-term issues, that’s when specialized legal assistance from firms like Bell Lawyers becomes very important. The best-interests tests, the rules around what counts as evidence connecting a parent to family violence, and the implications of the final orders on the family down the track make this a difficult area to navigate with general advice.
Relocation Disputes: A Harder Version Of The Same Question
Relocation cases are among the hardest to resolve under family law. If one parent wants to move their child interstate or overseas – to be nearer to family, for a job, or after starting a new relationship – and the other parent says no, the court must make a decision between two parents, each of whom has entirely reasonable grounds for their case.
The law doesn’t establish a bias in favor of or against such a move, and instead the proposal is measured against the same test of the child’s best interests that governs all other parenting arrangements. The most common question that emerges as the central question is how a child’s relationship with the left-behind parent will be affected – and whether the departing parent’s plans to maintain the relationship are realistic.
Some relocations are permitted. But some are stopped in their tracks when the evidence establishes that the move would impose untenable consequences on the parent-child relationship, and that the parent proposing the relocation doesn’t give proper weight to that risk. Each case is different.
When The Court Needs A Fuller Picture
In situations where disagreements are particularly intense, courts can implement additional procedures apart from conducting hearings. For instance, a family report can be requested, which is written by a court-appointed family consultant. This expert meets with the parents, the children, and sometimes other important individuals and provides the court with independent insights on family relationships, the parent-child relationships, and the feasibility of specific arrangements.
An Independent Children’s Lawyer may also be appointed by the court. This legal representative does not advocate based on the child’s wishes but instead forms an independent opinion of what is in the child’s best interests and brings that view to the court. The ICL might also directly talk to the child, examine documents, and call on witnesses. In very difficult cases with serious accusations, an ICL is often part of the decision-making process.
An order for a family report or an ICL is not made as a matter of course. They typically show up in cases with safety worries, children who have extraordinary requirements, or disputes in which the accounts provided by the parents are so contradictory that the court needs an independent opinion to make a decision.
What Happens After Orders Are Made
Decisions made by the court aren’t necessarily the end of co-parenting, rather a structure that families need to adapt to, sometimes for many years. The way in which parents follow those orders greatly influences the child’s well-being compared to the specific details of the order itself.
Should parents face the need for changes in the order due to changed circumstances, they can go back to mediation and establish new conditions by reaching agreement and filing consent orders. If reaching an agreement is not possible, returning to litigation is always an option, although this should not be the first resort.
The legal steps taken by families when getting divorced are supposed to lead to viable, child-centered solutions and not to prolonged disputes. Familiarizing yourself with how the process really takes place, what the court considers to be in the best interest of the child, and what options you have can help to approach the matter constructively and without unnecessary fear.
Getting a professional legal opinion early on while not all details have been discussed and arrangements are still informal, allows parents to have a clearer image of what to expect.
