Decisions about parenting are best made by the parents of the child, in consultation together. There is no need for legal intervention in most cases. However, where there is conflict about parenting arrangements, or concerns about the risk to children, the family law system is able to make orders to resolve these conflicts and to protect children.  

A parent or any other person concerned about the child’s welfare (such as a grandparent) can apply to the court for orders about a range of matters – including return of a child, who the child lives with, time spent with a child, or about parental decision making (called ‘parental responsibility orders’).

Parenting cases – the best interests of the child

When making a parenting order, the Family Law Act requires the court to regard the best interests of the child as the most important consideration. Parents must also use this principle when making parenting plans.

Family Law Act 1975

The Act (section 61DA) makes clear that:

  • both parents are responsible for the care and welfare of their children until the children reach 18
  • arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Two tiers of consideration

In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:

Primary considerations:

  • the benefit to children of meaningful relationships with both parents
  • the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).

Additional considerations:

  • the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
  • the child’s relationship with each parent and other people, including grandparents and other relatives
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
  • the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
  • the practical difficulty and expense of a child spending time with and communicating with a parent
  • each parent’s ability (and that of any other person) to provide for the child’s needs
  • the maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant
  • the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
  • the attitude of each parent to the child and to the responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • any family violence order that applies to the child or a member of the child’s family, if:
    the order is a final order, or
    the making of the order was contested by a person
  • whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
  • any other fact or circumstance that the court thinks is relevant.

A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:

  • taken the opportunity to:
    participate in decision-making about major long-term issues about the child
    spend time with the child
  • communicate with the child, and
  • met their obligations to maintain the child.

If the child’s parents have separated, a court must consider events and circumstances since the separation.

Whether you are involved in a court case, or (hopefully) trying to resolve parenting matters out of court, you should consider these issues in deciding how your parenting proposals will best meet the child’s needs.

The test – the best interests of the child, not ‘fairness’ between the parties

The court’s role is to arrive at a result that is best for the children. The interests of the adult parties, including partners and family members, are not matters that the legislation says must be taken into account, but rather the children’s interests in these relationships.

The court must provide procedural fairness between the parties – that is not the same as fairness in terms of the result.   If the only way to achieve fairness between the parties is to compromise a child’s interests, the court will not adopt that course. To put it another way, if an outcome is in the child’s best interests, the court may adopt that course even if it is not fair to one party or the other.

The children’s interests and the parent’s interests

In assessing each party’s parenting capacity and attitude to the responsibilities of parenting and to the child, the court will look at how each parent understands the child’s needs and interests, and whether they can give priority to the child over their own needs and interests.

Also, the court will be looking at each party’s ability to:

  • communicate and cooperate with the other party 
  • provide consistent parenting, routines and behavioural standards
  • respect the other party, as the child’s parent, and respect the child’s relationships with extended family on both sides, and
  • support the other party and their parenting decisions.

When parents are in conflict with the other party, they may often let their hostility for that parent get in the way of their ability to see the parent from the child’s point of view.  The family law system and parenting law is aimed at ensuring that a child can have a meaningful relationship with both parents (provided that the child is protected from risk of harm and of exposure to family violence), and outcomes for children that best promote a good relationship with both parents will be supported, over ‘win-lose’ outcomes.

If you are struggling with these problems in your relationship with the other parent, you can also benefit from ‘parenting after separation’ courses, which are offered by family relationship centres, and which help to improve communication between parents in conflict.