How does the Court decide what parenting arrangements are best for a child? We explain the current section 60CC factors, including safety, children’s views, parental capacity, relationships and the 2024 Family Law Act changes.
When parents cannot agree about where their child should live, how much time they should spend with each parent or who should make important decisions about them, the Court does not begin by asking what is fair to either parent.
The central question is: what is in the best interests of this particular child?
Under the Family Law Act 1975, a child’s best interests are the paramount consideration when the Court makes a parenting order. Section 60CC sets out the matters the Court must consider when determining those best interests.
The law changed significantly on 6 May 2024. The previous framework was replaced with a simpler set of considerations, with a clearer focus on safety, the individual needs of the child and the circumstances of each family. The former presumption of equal shared parental responsibility was also removed.
There is no legal starting point that children should spend equal time with each parent.
So what does section 60CC actually require the Court to consider?
Section 60CC requires the Court to consider six general matters when deciding what is in a child's best interests:
The Federal Circuit and Family Court of Australia summarises the current best-interests considerations in the same way.
For an Aboriginal or Torres Strait Islander child, section 60CC also contains additional considerations relating to the child's right to enjoy, maintain and develop their connection with their culture.
The important point is that section 60CC is not a checklist where one parent receives a score against the other. The Court considers the evidence as a whole and determines what arrangements are appropriate for the particular child.
Safety is expressly included in the first consideration under section 60CC.
The Court must consider what arrangements would promote the safety of:
Safety includes protection from family violence, abuse, neglect and other harm.
When considering safety, the Court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, as well as any family violence order that applies or has previously applied.
The Court's own guidance confirms that promoting the safety of the child and each person caring for the child is a central consideration in parenting disputes.
Depending on the circumstances, relevant evidence may include:
Not every allegation will ultimately be established. Equally, the absence of a police report does not necessarily mean that family violence did not occur.
The Court considers the available evidence and the particular risk alleged.
Where concerns can be managed, parenting orders may include safeguards such as supervised time, conditions around changeovers, communication arrangements or other protective measures.
Yes, but a child's views are not the same thing as the child deciding the case.
Section 60CC requires the Court to consider any views expressed by the child.
There is no fixed age at which a child can simply choose where they live.
The significance given to a child's views will depend on the circumstances, including the child's age, maturity, understanding and the context in which the views have been expressed.
A younger child's views may be considered differently from those of an older teenager, but age alone is not determinative.
The Court's Children's Charter also makes clear that children should be given an opportunity to express their views, but should not be required to do so.
Children generally do not give evidence in the courtroom or choose between their parents directly.
Their views may instead come before the Court through:
The focus should be on allowing children to be heard appropriately without putting them in the middle of the dispute.
The Court must consider the particular needs of the individual child.
This is broader than simply considering where a child currently lives or how much time they presently spend with each parent.
Relevant considerations can include:
What is appropriate for a two-year-old will not necessarily be appropriate for a 15-year-old.
Likewise, an arrangement that works well for one child in a family may not necessarily be appropriate for their sibling.
The Court must consider the capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs.
This is sometimes described broadly as parental capacity.
It is not simply a question of which parent earns more money or has the larger home.
The Court may consider practical matters such as:
Evidence about parenting capacity is usually much more useful when it is specific.
For example, stating that a parent is "more involved" tells the Court considerably less than identifying who attends medical appointments, communicates with the school, manages therapy, attends extracurricular activities and deals with the child's day-to-day needs.
Yes.
Section 60CC requires the Court to consider the benefit to the child of having a relationship with their parents and other people who are significant to them.
However, the current legislation expressly qualifies this consideration with the words "where it is safe to do so".
That qualification matters.
The current Act does not require a relationship with a parent to be maintained regardless of risk.
The Court must consider both the benefit of important relationships and whether those relationships can safely continue.
Significant relationships may include relationships with:
If a child has had little or no relationship with a parent for a significant period, the circumstances surrounding that history may also be relevant.
Section 60CC also allows the Court to consider anything else relevant to the particular circumstances of the child.
This recognises that families cannot be reduced to a rigid formula.
Depending on the case, other relevant matters might include:
The relevance and weight of any particular issue will depend on the evidence and the circumstances of the child.
Section 60CC contains additional requirements where the child is Aboriginal or Torres Strait Islander.
The Court must consider the child's right to enjoy their Aboriginal or Torres Strait Islander culture and to have the support and opportunity necessary to maintain and develop their connection with family, community, culture, country and language.
This forms part of the current best-interests framework rather than being an issue considered separately from the child's welfare.
No.
There is no presumption under the current Family Law Act that children should spend equal time with each parent.
The former presumption of equal shared parental responsibility was removed from the Act from 6 May 2024. The Attorney-General's Department specifically identifies the removal of that presumption as one of the major changes to the parenting framework.
That change is sometimes misunderstood.
It does not mean that children should automatically live primarily with one parent. Nor does it mean that parents cannot agree to equal time.
It means the Court starts with the individual child's best interests rather than a statutory presumption about parental responsibility or a particular division of time.
For some children, approximately equal time may be appropriate.
For others, living primarily with one parent and spending time with the other may better meet their needs.
The outcome depends on the circumstances of the particular child and family.
Parents sometimes approach parenting proceedings by trying to establish that they are the "better parent".
That is generally not the most useful way to approach section 60CC.
Evidence should instead address the child's circumstances and the orders being proposed.
That might include evidence about:
Specific examples are generally more useful than broad allegations or conclusions.
For example, rather than saying the other parent "does not prioritise school", evidence about particular absences, correspondence from the school and the steps taken to address the issue gives the Court something concrete to consider.
Yes.
Section 60CC is the legal test the Court applies, but the considerations are also useful when parents are negotiating parenting arrangements.
Instead of approaching negotiations solely in terms of "my time" and "your time", parents can ask:
If agreement can be reached, parents may record their arrangements in a parenting plan or apply for consent orders.
The Federal Circuit and Family Court of Australia explains that consent orders can make an agreement legally binding, but the Court must still be satisfied that parenting orders are in the child's best interests.
In most parenting matters, parents are expected to attempt Family Dispute Resolution before commencing parenting proceedings unless an exception applies.
Exceptions can include circumstances involving family violence, child abuse, risk or urgency.
The Attorney-General's Department provides further information about children and family law, parenting arrangements and Family Dispute Resolution.
The Family Law Amendment Act 2023 commenced substantially on 6 May 2024 and significantly simplified the way the Family Law Act expresses the best-interests test.
The previous legislation contained a longer list of primary and additional considerations.
The current section 60CC instead contains six general considerations, together with additional cultural considerations for Aboriginal and Torres Strait Islander children.
The amendments also removed the former presumption of equal shared parental responsibility.
The Attorney-General's Department's factsheet for parents explains the amendments and how they apply when parents are determining parenting arrangements.
Family law practitioners can also refer to the Attorney-General's Department factsheet for family law professionals, which deals specifically with the changes to parental responsibility and the best-interests factors.
There is no standard parenting arrangement that the Family Law Act regards as best for every child.
Section 60CC requires the Court to look at the individual child.
Safety is fundamental, but it is considered alongside the child's views, developmental and emotional needs, each proposed carer's capacity, important relationships and the particular circumstances of that family.
If you are negotiating parenting arrangements or involved in parenting proceedings, the more useful question is generally not:
"What am I entitled to?"
It is:
"What evidence shows that the parenting arrangement I am proposing is in this child's best interests?"
Katrene Halteh is the Principal Solicitor and Director of Urban Law Group and a contributing author to the CCH Australian Master Family Law Guide. Her work on the publication has included updating family law commentary following significant legislative changes, including changes affecting parenting matters.
Urban Law Group advises parents about parenting arrangements, parental responsibility, family violence and risk issues, consent orders, Family Dispute Resolution and parenting proceedings.
This article contains general information only and is not legal advice. Family law outcomes depend on the individual circumstances of each matter.