Parenting Orders must be in the best interests of the child

8 December
Parenting Arrangements

When separated parents cannot agree about arrangements for their children, they may elect to apply to the Federal Circuit and Family Court of Australia (‘the FCFCoA’) for Parenting Orders. As of May 2024, the Family Law Act 1975 (Cth) has changed how the Court makes Parenting Orders. The primary consideration when making the Orders must be the “best interests of the child”.

These amendments to the law (made via the Family Law Amendment Act 2023) have changed the following:

What a Court must consider when determining what is in the child’s best interest; and
How separated parents are to make decisions about long-term issues for their children.

So, what do these crucial changes mean for separated parents, and what do you need to know?

What are the best interests of a child?

When making a Parenting Order, the Court must make Orders that are in the child’s best interests.

Previously, the Family Law Act 1975 listed 16 factors to be considered by the Court, categorised into ‘primary’ and ‘additional’ considerations.

Under the changes that came into effect in May 2024, the Court has reduced the factors to six.

The safety of the child and people who care for the child (including any history of family violence and family violence Orders);
The child’s views;
The developmental, psychological, emotional and cultural needs of the child;
The capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings); and
Anything else that is relevant to the particular circumstances of the child.

If you are seeking Parenting Orders from the Court, it is important that you provide reasons why the Orders sought are in your child’s best interests.

The Court must make Orders that are in a child’s best interest when determining:

who is responsible for making decisions for a child;
who a child lives with and when they spend time with each parent (including provisions for special occasions like Christmas, New Years, Easter, birthdays etc);
when and how a child will electronically communicate with each parent; and
interstate or international travel with any children of the relationship.

What does the law say about making decisions for a child of separated parents?

Previously, under the Family Law Act 1975, there was a presumption that parents would have ‘equal shared parental responsibility’ for their child or children. This was a presumption that parents would be jointly responsible for making long-term decisions for a child. Long-term decisions include issues such as living arrangements, religion, education, travel and health.

In the past, if you were seeking sole parental responsibility (being able to make long-term decisions for your child without the other parent’s input or consent), you would need to show why the presumption should not apply. Although a common misconception, there was no presumption in the law that a child would spend equal time with both parents.

Since the changes to the law (which came into effect in May 2024), there is no presumption for equal shared parental responsibility in place, and the term ‘parental responsibility’ has been removed from the law. This has instead been replaced with the term ‘decision-making’.

If parents do not have court Orders in place, they are now encouraged to consult with each other about the child’s major long-term requirements and needs and make decisions in the child’s best interests. Importantly, however, you are not encouraged to consult with the other parent if it would not be safe for you to do so.

Otherwise, if you are seeking a Parenting Order from the court, you can apply for an Order to make decisions jointly or to have sole responsibility for some or all of these decisions. The Court will make these Orders based on what is in the best interests of the child.

How can a family lawyer help?

Family Law Resolutions have an expert team of family lawyers who can assist with Consent Orders or Binding Financial Agreements. We can help you analyse the pros and cons of both options in order to reach a decision on what is best for your specific and unique needs.

If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.