When parents separate, one of the hardest questions is: “What arrangements are in my child’s best interests?” If parents can’t agree, the Federal Circuit and Family Court of Australia can make parenting orders.
The law does not ask what is “fair” to each parent. It asks what arrangements best promote the child’s welfare and development, with the child’s best interests as the paramount consideration. The Court decides this question by applying the framework in Part VII of the Family Law Act 1975 (Cth) (the Act).
Since 6 May 2024, the best-interests factors are set out in a streamlined way in s 60CC, described as “general considerations” (plus additional cultural considerations for Aboriginal and Torres Strait Islander children).
Step 1: The Court starts with s 60CC (the best-interests “checklist”)
Section 60CC requires the Court to consider a set of general considerations when deciding what is in a child’s best interests. These include:
- Safety
What arrangements would promote the safety of:
- the child; and
- each person who has care of the child (even if they are not a parent),
including safety from family violence, abuse, neglect, or other harm.
- The child’s views
Any views expressed by the child (with weight depending on age/maturity and circumstances). - The child’s needs
The child’s developmental, psychological, emotional and cultural needs. - Parental capacity
The capacity of each person who has (or is proposed to have) parental responsibility to meet the child’s needs. - Relationships (where safe)
The benefit to the child of being able to have a relationship with the child’s parents, and other significant people, where it is safe to do so. - Anything else relevant
Any other matter relevant to the child’s particular circumstances.
If the child is an Aboriginal or Torres Strait Islander child, the Court must also consider additional cultural considerations, including connections to family, community, culture and country.
Safety is central (and it is broader than “physical danger”)
Safety is not limited to physical safety. The Court considers safety from:
- being subjected to family violence, abuse or neglect; and
- being exposed to family violence or other harmful behaviour.
Family violence includes coercive control
Family violence is defined broadly. It can include violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful. It can also include patterns of controlling behaviour such as financial control, isolation, stalking/surveillance, property damage and repeated derogatory taunts.
The Court looks at behaviour in context and its impact, not just isolated incidents.
The Court considers history + existing family violence orders
When considering safety, the Court can take into account:
- any history of family violence, abuse or neglect; and
- any current or past family violence orders affecting the child or members of the child’s family.
“Unacceptable risk” and safeguards
The Court’s job is not only to decide what happened in the past, but also to make orders that protect children and carers from future harm. Where safety concerns exist, the Court may make protective conditions rather than “all or nothing” outcomes—for example:
- supervised time;
- safe changeovers;
- conditions about alcohol/drugs;
- limits on communication; or
- orders about third-party involvement.
The child’s views: important, but not a “vote”
Children are not required to express views. When views are available, the Court may consider them, but the weight depends on the child’s age, maturity and circumstances.
Children are not expected to “choose” between parents.
The child’s needs and each parent’s capacity
The Court looks at what the child needs to thrive (emotionally, psychologically, developmentally, culturally) and how each parent can meet those needs.
This often involves practical questions such as:
- routines, sleep, school and homework;
- medical needs and therapy supports;
- a parent’s insight and willingness to support the child’s emotional needs; and
- the capacity to shield the child from adult conflict.
Relationships: “where safe to do so”
The law recognises children often benefit from meaningful relationships with both parents and other significant people—but only where it is safe.
This is where the Court often has to balance:
- the benefit of relationships; against
- the risk of harm (including emotional or psychological harm), and whether safeguards can manage that risk.
Step 2: Decision-making responsibility is no longer “presumed” equal
A common myth is that separation means “50/50” or “equal shared parental responsibility.” That is not correct.
There is no automatic presumption that parents must share decision-making equally, and there is no automatic pathway to equal time.
Instead, the Court allocates decision-making responsibility according to what is in the child’s best interests. A parenting order can provide for joint or sole decision-making about major long-term issues (for example, education, health, religious/cultural upbringing, name, and significant changes to living arrangements).
If the Court orders joint decision-making, it usually requires parents to consult each other and make a genuine effort to reach agreement.
Step 3: Interim hearings vs final hearings (why results can differ)
Many matters have interim orders first, then final orders later.
Interim hearings are usually decided on limited written material (affidavits and submissions) without cross-examination. Because the evidence is not fully tested at that stage, the Court often focuses on:
- immediate safety and risk management; and
- stability and workable short-term arrangements.
Final orders are made after fuller evidence is available (or by agreement).
Evidence and procedure: risk allegations must be properly raised
If parenting proceedings are filed, the Court expects risk issues to be identified properly and supported by evidence.
Where there are family violence or child safety concerns, the Court can take additional steps, including obtaining reports, making protective orders, and ensuring orders are workable and safe.
Practical tips: what the Court tends to value (because it connects to s 60CC)
Every case turns on its facts, but in general, the Court tends to be influenced by evidence of:
- Child-focused parenting (routines, schooling, medical follow-through, emotional support)
- Insight and protective capacity (especially where there are safety concerns)
- Willingness to support safe relationships with the other parent and significant people (noting safety comes first)
- Practical, workable proposals (clear changeovers, travel arrangements, communication methods, holiday plans)
- Reducing conflict exposure (shielding the child from adult disputes)
Frequently asked questions
Does “best interests” mean equal time?
No. There is no automatic 50/50 rule. The Court makes whatever parenting orders best promote the child’s best interests.
Will the Court “ignore” family violence if it happened in the past?
No. Past family violence can be relevant to both the child’s wellbeing and future risk. The Court considers safety and can include safeguards in parenting orders.
Do the child’s wishes decide the case?
Not necessarily. The Court may consider the child’s views, but it depends on age, maturity and circumstances, and children are not required to express views.
Why do interim orders sometimes feel “unfair”?
Interim proceedings are decided on limited material without cross-examination, so the Court often focuses on immediate risk management and stability pending a final hearing.
Need advice about your child’s best interests?
If you’re negotiating parenting arrangements or facing Court proceedings, early advice can help you:
- frame proposals in a way that aligns with the law;
- prepare evidence properly; and
- prioritise safety and stability for your child.
This article is general information only and is not legal advice.
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