How the family court decides parenting cases: the best interests test explained

When parents cannot agree about arrangements for their children, the central question for the Federal Circuit and Family Court of Australia is not what either parent wants. It is what arrangements are in the best interests of the child.

This is the paramount consideration under the Family Law Act 1975. It applies whenever a judge or registrar makes parenting orders, whether the dispute concerns where a child lives, the time they spend with a parent, communication arrangements, schooling, medical decisions or other aspects of parental responsibility.

The best interests test is not a formula with a predetermined outcome. Every family is different. The Court must consider the available evidence and assess the individual needs, safety and circumstances of each child.

The Child’s Best Interests Are the Paramount Consideration

Parenting proceedings can be highly emotional. Parents may feel strongly about what should happen and why. But the Court is required to approach the matter through the child’s perspective.

This means the Court does not simply reward the parent who has been more upset, more financially secure or more critical of the other parent. Nor does it start with an assumption that any particular arrangement will suit every child. The focus remains on what will best promote the child’s welfare, development, safety and relationships in the circumstances of that particular family.

Section 60CC of the Family Law Act sets out the matters the Court must consider when determining a child’s best interests. These considerations guide the decision-making process, but they must be applied carefully to the evidence in each case.

What Evidence Does the Court Consider?

A parenting case is determined on evidence, not simply on competing allegations. The Court commonly considers a range of material before deciding what parenting orders should be made.

Affidavits and witness evidence

Each party generally provides an affidavit setting out the relevant facts from their perspective. This can include the child’s living arrangements, their relationship with each parent, school and health needs, communication between the parents, concerns about safety, and the practical arrangements being proposed.

The Court may also receive affidavits from other witnesses. Depending on the issues, this may include family members, teachers, treating professionals or other people with direct knowledge of matters affecting the child.

Expert evidence can be particularly important where there are concerns about family violence, mental health, substance misuse, a child’s developmental needs or the effect of conflict on the child.

Submissions made by the parties

In addition to evidence, the Court considers legal submissions made by the parties or their lawyers. Submissions explain how the evidence should be assessed and why a proposed set of parenting orders is said to be in the child’s best interests.

It is important to remember that submissions are not evidence. A parent may make an allegation, but the Court must assess whether it is supported by reliable material and how much weight it should receive.

Child Impact Reports and Family Reports

Reports prepared by independent experts are common in parenting matters. There may be a Child Impact Report prepared by a family consultant, or a more detailed family report prepared by a psychologist or social worker.

These reports help the Court understand the family dynamics and the child’s circumstances. The report writer will usually meet with both parents and may speak with the child. They may also obtain information from other relevant people where appropriate.

A report can address matters such as:

• The child’s relationship with each parent and other important people.
• The child’s emotional, psychological and developmental needs.
• The impact of parental conflict on the child.
• Any safety concerns affecting the child.
• Each parent’s ability to meet the child’s needs.
• The child’s expressed views, where it is appropriate to obtain them.
• Recommendations about future parenting arrangements.

Because the report writer is an independent professional, their recommendations can carry considerable weight. However, a report is not automatically determinative. The Court must consider the report together with all other evidence and make its own decision.

When an Independent Children’s Lawyer May Be Appointed

In some parenting cases, the Court appoints an Independent Children’s Lawyer, often referred to as an ICL. The ICL is generally appointed through Legal Aid and has a distinct role from the lawyers representing the parents.

The ICL does not simply act on instructions from the child in the way a lawyer might act for an adult client. Their role is to ensure that relevant evidence is put before the Court and to assist the Court in determining what outcome is in the child’s best interests.

In most cases, an ICL is now required to meet with and communicate with the child, subject to limited exceptions. This does not mean the child is asked to choose between parents. Children should not be placed in that position. Rather, their views and experiences may be obtained in an appropriate and sensitive way, then considered alongside the other evidence.

The Key Section 60CC Factors

Section 60CC requires the Court to consider a number of important factors. The significance of each factor depends on the child and the evidence available.

1. The safety of the child

Safety is a major consideration, for obvious reasons. The Court considers whether there is any risk of harm to the child, including exposure to family violence, abuse, neglect or other unsafe circumstances.

Safety concerns can affect the nature of parenting orders. In some cases, they may lead to conditions around time spent with a parent, supervised time, limits on communication or other protective arrangements. The Court’s task is to make orders that properly protect the child while considering all relevant circumstances.

2. The child’s views

The Court considers the views expressed by the child, taking account of the child’s age, maturity and level of understanding. The wishes of an older child with well-developed and firmly held views are generally likely to carry more weight than those of a younger child.

That said, a child’s views are only one part of the assessment. The Court must consider whether those views are genuinely held, whether the child may have been exposed to pressure or conflict, and whether following those wishes would ultimately be in the child’s best interests.

3. The child’s needs

The Court considers the child’s developmental, psychological, emotional and cultural needs. This requires a practical assessment of what the child needs to thrive, both now and as they grow older.

A child’s needs may include stability at school, support for medical or therapeutic needs, predictable routines, emotional security and protection from adult conflict. What is appropriate will vary greatly between families and between children of different ages.

4. Each parent’s capacity to provide care

The Court also considers the ability of each parent to provide for the child’s needs. This is not merely a question of income or housing. It includes a parent’s capacity to provide day-to-day care, emotional support, guidance, stability and appropriate decision-making.

The Court may examine how each parent has cared for the child in the past, but it must also focus on their capacity to meet the child’s needs into the future.

5. Significant relationships

Children usually benefit from maintaining meaningful relationships with both parents and with other significant people in their lives, provided this is safe and in their best interests. This may include grandparents, siblings, extended family members and other important support networks.

The Court considers the value of preserving those relationships, while balancing that benefit against any relevant risks or practical difficulties.

Cultural Heritage Must Be Properly Considered

For Aboriginal and Torres Strait Islander children, the Court must also consider the child’s right to enjoy their culture. This includes the child’s opportunity to connect with and maintain a connection to their culture, as well as the likely impact of any proposed parenting order on that connection.

The views of the child’s extended family and community may be important when the Court considers the child’s cultural heritage and the arrangements that will support it.

The Court Can Consider Other Relevant Circumstances

Family law does not operate through a rigid checklist alone. Section 60CC also allows the Court to take into account any other facts or circumstances it considers relevant to the particular child.

This is important because parenting disputes can involve a wide range of issues. The Court may need to consider practical matters such as distance between households, a parent’s work arrangements, the child’s health requirements, the parents’ ability to communicate, or the impact of a proposed change on the child’s routine.

The best interests test is therefore broad, evidence-based and focused on the individual child rather than on a one-size-fits-all model of parenting.

Getting Advice Early in a Parenting Dispute

Parents involved in a parenting dispute should obtain advice from a lawyer who practises in family law, preferably at an early stage. Early advice can help a parent understand the relevant legal principles, identify the evidence that may matter, and assess whether an agreement can be reached without lengthy court proceedings.

Many parents represent themselves in Court. Even where that occurs, obtaining legal advice at key points in the process can be valuable. Parenting cases require careful attention to evidence, procedure and the child-focused factors that the Court must consider.

Bruce Provan is a Queensland Law Society Accredited Specialist in family law with extensive experience in parenting disputes, mediation and property matters. Page Provan’s family lawyers in Brisbane assist clients with practical, child-focused advice in parenting matters throughout Australia.

Where a parenting issue requires advice or urgent action, contact Page Provan to discuss the circumstances and the available options.