When parents separate, the most important question is how the children will be cared for. Australian family law focuses on the best interests of the child, not on what is fair to each parent. Changes that commenced on 6 May 2024 simplified how those best interests are assessed.
No presumption of equal shared responsibility
Before May 2024, the law presumed that it was in a child's best interests for parents to have equal shared parental responsibility, and that presumption was often linked to discussions about equal time. Both the presumption and that link have been removed. The court now looks at each family's circumstances without a starting point.
The best interests factors
When deciding what arrangements are in a child's best interests, the court considers:
- what arrangements best promote the safety of the child and each person who cares for them, including safety from family violence, abuse and neglect;
- any views expressed by the child;
- the child's developmental, psychological, emotional and cultural needs;
- each person's capacity to provide for those needs;
- the benefit to the child of a relationship with each parent and other important people, such as grandparents and siblings, where it is safe; and
- anything else relevant to the child's circumstances.
For Aboriginal and Torres Strait Islander children, the court must also consider the child's right to enjoy their culture.
Family dispute resolution comes first
In most cases, you must make a genuine attempt at family dispute resolution (a form of mediation) before you can apply for parenting orders. If it does not resolve the matter, the practitioner issues a certificate. Exceptions apply where there is family violence, child abuse or genuine urgency.
Your options for reaching agreement
- Parenting plan: a written, signed and dated agreement. It is flexible but not legally enforceable.
- Consent orders: your agreement is made into court orders without a hearing. Orders are enforceable.
- Court proceedings: if you cannot agree, the court decides. This takes longer and costs more, but is sometimes necessary, especially where safety is a concern.
How we can help
We help you understand what arrangements are realistic, prepare you for mediation, draft parenting plans and consent orders, and represent you in court when an agreement cannot be reached. Where family violence is involved, we make sure safety comes first.
