The end of a relationship is never easy, especially when children are involved. In New South Wales, parenting arrangements are governed by the federal family law system. The court’s focus in parenting matters is the child’s best interests, with safety as a central consideration under the Family Law Act 1975 (Cth) as amended in 2024.
This article explains how the law approaches the best interests of the child and outlines some practical steps to help separated parents navigate parenting arrangements.
The Best Interests of the Child – Key Considerations
When determining children’s matters including parenting arrangements, the law focuses on the child’s best interests through a set of considerations, with child safety at the centre. Under the current Family Law Act framework, the court must consider a shorter list of factors that include safety, the child’s views, developmental and cultural needs, each caregiver’s capacity, the value of important relationships where safe, and any other relevant matter.
These considerations are:
- Safety: The need to protect the child, and each person caring for the child, from family violence, abuse, neglect or other harm.
- The child’s views: Any views expressed by the child, having regard to their age, maturity and circumstances.
- Developmental, psychological, emotional and cultural needs: The child’s needs, including their connection to family and culture.
- The capacity of each relevant person: The ability of each person with, or proposed to have, parental responsibility to provide for the child’s needs.
- Relationships: The benefit to the child of maintaining relationships with parents and other significant people, where it is safe to do so.
- Any other relevant matter: Any other circumstance that is relevant to the child’s situation.
The law no longer sets out a formal hierarchy among these considerations, but safety is given particular emphasis and forms a central part of the assessment of the child’s best interests. In parenting proceedings, the court must consider any history of family violence, abuse or neglect, and any family violence order that applies or has applied
Extra Considerations for First Nations Children
For Aboriginal or Torres Strait Islander children, the court must also consider the child’s right to enjoy their culture through connection with family, community, culture, country and language; and the likely impact of any proposed parenting order on that right.
Parental Responsibility
There is no automatic legal presumption that parents must share decision‑making equally. The previous “presumption of equal shared parental responsibility” has been removed, so decisions about who makes major long‑term choices are based on the child’s best interests on the facts of the case. Decision‑making may be shared or allocated primarily to one parent based on the child’s best interests. It may involve joint decision‑making for some matters, or sole decision‑making for others, depending on the circumstances.
Considerations for Parenting Arrangements
There is no one‑size‑fits‑all answer to making parenting plans, however the child’s best interests, assessed under the current Family Law Act framework, should be the main consideration. Effective parenting arrangements require a cooperative approach between parents with the children’s welfare at the forefront of negotiations.
1. Put safety first
When considering any arrangement, ask whether it protects the child and the people caring for the child. Also ask whether the arrangement reduces the risk of conflict, family violence or emotional harm.
2. Assess the practical considerations
Once safety considerations are addressed, look at the practical considerations:
- The children’s age: Routines and needs typically change from infants to toddlers through to older children.
- Each parent’s capacity to provide care: This includes factors like emotional stability, financial resources, work and other schedules and their general availability to meet the child’s needs.
- Existing routines and attachments: Maintaining continuity in the child’s life, such as schooling, extracurricular activities, and relationships with friends and extended family, is important.
- Child’s wishes: Depending on their age and maturity, children’s views and preferences may be taken into account.
3. Decide how major decisions will be made
Parents need to think about who will make major long-term decisions about matters such as:
- Education
- Health
- Religion or culture
- The child’s name (for example, or other significant identity related decisions)
These responsibilities can be shared or assigned mainly to one parent, depending on what is safest and most workable for the child.
4. Try mediation or family dispute resolution where appropriate
A mediator or family dispute resolution practitioner can help parents agree on implementing effective plans that work for everyone.
Before starting parenting proceedings in court, you will usually need to obtain a section 60I certificate from an accredited family dispute resolution practitioner or fit within an exemption. Exemptions can apply in cases such as urgency, family violence, child abuse, or other circumstances recognised by the Act.
Mediation or family dispute resolution can help parents:
- Communicate constructively,
- Explore options for parenting time and decision-making, and
- Record any agreement in a parenting plan.
5. Communicate and stay flexible
Where it is safe to do so, parents should try to communicate respectfully and remain open to practical changes as children grow and circumstances evolve.
Parenting arrangements often need to be reviewed over time. A plan that works now may not suit a child’s needs later.
Documenting Your Agreement
If parents reach agreement, there are generally two ways to record it.
Parenting Plan
A parenting plan is a written, signed agreement between parents. It is flexible and can be changed by consensus, but it is not a court order and is not directly enforceable like one. Courts may still take it into account when considering what is in the child’s best interests.
Consent Orders
Parents can ask the court to make their agreement into parenting orders by filing consent orders. If the court is satisfied the orders are appropriate, they can be made legally binding. x are enforceable and provide greater certainty than a parenting plan.
Parents may later apply to vary existing orders if there is a legal basis to do so.
Key Takeaways
The child’s safety, and the safety of their carers, are central to parenting decisions. Parenting arrangements are not based on a parent’s entitlement to 50/50 time, but on the child’s best interests.
This article provides general information only and does not constitute legal advice. Laws and procedures can change, and the right approach will depend on your particular circumstances. You should obtain legal advice specific to your situation.
If you or someone you know needs help or advice, please call 02 9266 0688 or email [email protected].