Key Takeaways:
- The best interests of the child are the most important consideration in any care arrangement.
- The allocation of parental responsibility and major long-term decision making are the starting points, but it does not guarantee equal time with each parent.
- The Court may consider the child’s views, depending on their age and maturity.
- Parental involvement, history of care, and the ability to meet the child’s needs are key factors.
- Practical issues, like distance between homes and schooling, also play a role in a Court’s decision.
- Evidence of family violence, abuse, or neglect will significantly affect parenting arrangements.
- The cultural and religious background of the child is also an important factor.
Navigating care arrangements for child after separation is often one of the most emotionally charged and challenging aspects of family law, both for parents and children. In Australia, the term “custody” is no longer commonly used in legal language. Instead, we refer to “parental responsibility”, “major long-term decision making”, “live with and spend time with arrangements”. These terms reflect a shift in focus from parental rights to the rights and best interests of the child.
When determining where a child will live and how much time they will spend with each parent, the law will always take a child-focused approach. Whether parents agree privately, through mediation, or seek legal advice to obtain a decision from the Court, there are several key factors that will influence the outcome.
The Child’s Best Interests
Under Australian family law, the paramount consideration in any parenting matter is the best interests of the child. Section 60CC of the Family Law Act 1975 outlines various considerations in determining what is in a child’s best interests:
- What arrangement is going to promote the safety of the child?
- Any views expressed by the child.
- What developmental, psychological, emotional and cultural needs does the child have?
- What capacity does each parent have to adequately provide for the child’s developmental, psychological, emotional and cultural needs?
- What is the benefit of the child having a relationship with both parents and other people significant to the child?
- Whether the child is Aboriginal or Torres Strait Islander. Children have a right to enjoy their Aboriginal or Torres Strait Islander culture, to maintain connection with members of their family, community, culture, country and language. They have a right to explore the full extent and develop an appreciation of that culture.
- Any other relevant circumstances of the child.
If these considerations come into conflict, the child’s safety takes priority. The Court will always prioritise a child’s protection over preserving parental relationships if there is any risk of harm.
Parental responsibility, decision making and living arrangements
Under the Family Law Act 1975 (“the Act”), each parent has parental responsibility for their minor child (a child under the age of 18 years) unless otherwise stated in an existing parenting Order made by the Court or, if the Court allocates parental responsibility solely to one parent due to safety concerns.
Where it is safe to do so a Court will allocate joint decision-making powers between parents in relation to major long-term issues for their minor child. The Act provides that both parents need to make a genuine effort to come to a decision that is in the best interests of their child.
The responsibility of decision making in relation to long-term issues refers to the parents consulting each other about the child’s welfare, education, health care, and religion. There is no need to consult one another on issues that are not major long-term issues, unless otherwise specified in an Order made by the Court.
It’s important to understand that joint decision making in relation to major long-term issues does not mean equal time. The amount of time a child spends with each parent is considered separately from the concepts of parental responsibility and the making of major long-term decisions.
The Child’s Views
Depending on the child’s age, maturity, and ability to express themselves, their views may be considered. Courts do not allow a child to choose where they live, but their preferences can carry significant weight—especially for older children who are able to clearly explain their wishes and demonstrate insight into their situation.
A child’s opinions may be communicated through a family consultant or an independent child’s lawyer if appointed.
History of the Parent-Child Relationship
The Court takes a close look at the nature and history of the child’s relationship with each parent. This includes:
- How involved each parent has been in the child’s daily life
- Who has taken responsibility for the child’s developmental, psychological, emotional and cultural needs
- The level of emotional attachment between the child and each parent
A parent who has been actively involved, provided consistent care and a safe environment, is more likely to be granted substantial time or even primary care of the child.
Practical Considerations
In making care arrangement decisions, Courts also consider how practical the parenting arrangements will be. This includes:
- The geographic distance between the parents’ homes
- The child’s existing schooling, friendships, and community ties
- The parents’ work commitments and capacity to care for the child during their time
The Court will aim to minimise disruption to the child’s life while also encouraging a stable and supportive environment with both parents where possible and safe to do so.
Family Violence and Safety Concerns
The presence of family violence or abuse is taken extremely seriously. If a parent poses a risk to the child’s physical or emotional safety, the Court may limit or even deny contact.
Protective measures, such as supervised visitation, may be put in place where appropriate. Allegations supported by evidence can significantly impact the outcome.
Cultural and Religious Considerations of the child
Where relevant, the Court considers the child’s cultural background. The law recognises the importance of maintaining cultural identity and connection to community. Religious upbringing may also be considered, particularly if both parents follow different faiths or if the child has been raised in a specific tradition.
Conclusion
Care arrangement decisions under Australian family law are centred around the best interests of the child, not the desires of the parents. While both parents are encouraged to be involved in their child’s life, safety, stability, and emotional well-being are always prioritised.
The legal process can feel overwhelming, especially when emotions are high. Seeking advice from a family lawyer or attending family dispute resolution such as meditation can help clarify your rights and responsibilities and support a more amicable outcome.
By understanding how decisions are made under the Act, parents can better prepare for negotiations or Court proceedings and ensure they are truly advocating for what’s best for their child.
If you require guidance regarding a family law parenting matter, one of our experienced family law solicitors can offer their support and provide the advice you need.
This blog was written by Solicitor,
Maxcine Taylor
Maxcine practices in the areas of Family Law, Wills & Estate Planning,
and Deceased Estates
