Best Interests of the Child in NSW Parenting Matters
- In every Australian parenting case, the child’s best interests are the paramount consideration for the court (Family Law Act 1975 (Cth), s 60CA).
- Since 6 May 2024, the court applies six general considerations under section 60CC of the Family Law Act 1975 (Cth): safety, the child’s views, developmental and cultural needs, each carer’s capacity to meet those needs, the benefit of relationships where safe, and anything else relevant.
- There is no longer a presumption of equal shared parental responsibility, and no automatic starting point of equal time or substantial time — arrangements are decided on the child’s best interests in each case.
Plain-English Glossary
| Term | What it means |
| Best interests of the child | The legal standard that must be the paramount (most important) consideration whenever a court makes a parenting order (Family Law Act 1975 (Cth), s 60CA). |
| Parenting order | A court order dealing with who a child lives with, spends time with, communicates with, or how decisions about the child are made. |
| Parenting plan | A written agreement between parents about parenting arrangements, dated and signed, but not court-enforceable in the same way as a parenting order. |
| Consent orders | Parenting orders made by the court with the agreement of both parents, without a contested hearing. |
| Parental responsibility | All the duties, powers, responsibilities and authority parents have in relation to their children by law (Family Law Act 1975 (Cth), s 61B). Each parent has it unless a court order says otherwise. |
| Major long-term issues | Significant decisions about a child’s care, welfare and development — for example, education, religious and cultural upbringing, health, name, and living arrangements that significantly affect the child’s ability to spend time with a parent. |
| Independent Children’s Lawyer (ICL) | A lawyer appointed by the court in some matters to represent the child’s interests independently of either parent. |
| Family dispute resolution (FDR) | Mediation aimed at helping parents reach their own agreement about parenting arrangements, generally required before filing most parenting applications (Family Law Act 1975 (Cth), s 60I). |
| Section 60I certificate | A certificate issued by a family dispute resolution practitioner confirming what happened at, or instead of, family dispute resolution (for example, that a party attended, did not attend, or that the practitioner considered FDR inappropriate). It must generally be filed with a parenting application unless the court separately grants an exemption from that requirement. |
How the Best Interests Test Is Applied
- Identify the general considerations. Under section 60CC(2), the court must consider: safety; the child’s views; the child’s developmental, psychological, emotional and cultural needs; each proposed carer’s capacity to meet those needs; the benefit of relationships with parents and other significant people, where safe; and anything else relevant to that child.
- Weigh safety first in practice. Safety considerations include any history of family violence, abuse or neglect, and any family violence orders that apply to the child or family (s 60CC(2A)) — these must always be considered as part of the safety factor.
- Consider the child’s views. The child’s views are considered having regard to their age and maturity, obtained appropriately — for example, through a family report writer, family consultant, or an Independent Children’s Lawyer, rather than by directly asking a young child to choose between parents.
- Assess capacity, not just intention. The court looks at each proposed carer’s actual capacity to meet the child’s needs, not simply what each parent says they will do.
- Apply the additional Aboriginal or Torres Strait Islander culture factor, where relevant. If the child is an Aboriginal or Torres Strait Islander child, the court must also consider the child’s right to enjoy their culture and the likely impact of any proposed order on that right (s 60CC(3)).
- Decide parental responsibility and living/time arrangements based on the outcome. There is no presumption of equal shared parental responsibility and no automatic entitlement to equal or substantial time — the court decides parental responsibility for major long-term issues, and living and time arrangements, based on what is in the best interests of that particular child.
Before and After the 6 May 2024 Reforms
| Feature | Before 6 May 2024 | From 6 May 2024 |
| Structure of s 60CC | Two-tiered: two primary considerations plus thirteen additional considerations. | Six general considerations, not ranked in a hierarchy, plus a separate factor for Aboriginal or Torres Strait Islander children. |
| Primary focus | Meaningful relationship with both parents, weighed against protection from harm (greater weight given to protection from harm). | Safety, the child’s views, developmental/psychological/emotional/cultural needs, carer capacity, benefit of relationships where safe, and anything else relevant — assessed together for that child. |
| Parental responsibility | Presumption of equal shared parental responsibility applied unless rebutted by evidence of abuse or family violence. | No presumption. The court decides parental responsibility for major long-term issues based on the child’s best interests in each case. |
| Time arrangements | If equal shared parental responsibility applied, the court had to consider equal time, then substantial and significant time. | No mandated consideration of equal or substantial time. Living and time arrangements follow directly from the best interests assessment. |
| Joint decision-making | Tied to the presumption of equal shared parental responsibility. | Where a parenting order provides for joint decision-making on major long-term issues, s 61DAA requires consultation and a genuine effort to reach a joint decision. |
This table summarises the effect of the Family Law Amendment Act 2023 (Cth), which commenced on 6 May 2024 and applies to current and future parenting proceedings, other than matters where a final hearing had already started before that date.
Local Support in Hornsby and the Upper North Shore
Caspian Legal assists parents across Hornsby and the Upper North Shore, including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and Mount Colah, with parenting matters ranging from informal discussions between separating parents through to contested proceedings in the Federal Circuit and Family Court of Australia. Many local families are able to resolve arrangements through family dispute resolution or consent orders without a contested hearing, and we can advise on whichever pathway suits your circumstances.
What Happens at a First Consultation
- We discuss your family’s current arrangements, any safety concerns, and what you are trying to achieve.
- We explain, in plain English, how the section 60CC factors are likely to apply to your circumstances.
- We discuss options — including family dispute resolution, a parenting plan, consent orders, or contested proceedings — and the practical and cost implications of each.
- Where appropriate, we advise on urgent steps if there are immediate safety concerns for a child.
What Not to Do
- Do not assume equal time is the default outcome — there is no presumption of equal shared parental responsibility or equal time under the current law.
- Do not withhold a child from the other parent, or ignore an existing order, without first getting legal advice — this can affect how the court views your case.
- Do not coach a child on what to say to a family report writer or Independent Children’s Lawyer — this can undermine your credibility and is not in the child’s interests.
- Do not skip family dispute resolution without checking whether an exemption genuinely applies — most parenting applications require a section 60I certificate before filing.
- Do not rely on a verbal agreement for significant arrangements — put agreed arrangements in a parenting plan or, for enforceability, consent orders.
- Do not ignore family violence or safety concerns, or delay reporting them, in the hope arrangements will resolve themselves.
Risk of Delay
Delaying advice about parenting arrangements can allow informal or unsafe arrangements to become entrenched, which can be harder to change later. If there are safety concerns for a child, these should be raised promptly — with police, a family violence support service, or the court, as appropriate — rather than left unaddressed. Time limits may also apply to related applications, such as property settlement, so it is worth obtaining advice on your overall situation rather than the parenting issue in isolation.
Frequently Asked Questions
What is the single most important factor in deciding a child’s best interests?
There is no single most important factor. The six general considerations in section 60CC are not ranked in a hierarchy, and the court weighs them together based on the individual child’s circumstances. Safety is always considered as part of that assessment, including any history of family violence, abuse or neglect.
Does a child get to choose which parent they live with?
No. The child’s views are one of several factors the court considers, given weight according to the child’s age and maturity, but the child does not make the final decision. Views are usually obtained through a family report writer, family consultant, or an Independent Children’s Lawyer, rather than by asking the child to choose directly.
Is 50/50 shared care automatic?
No. Since the Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024, there is no presumption of equal shared parental responsibility and no requirement for the court to consider equal time or substantial and significant time as a starting point. Any time arrangement is decided on what is in that child’s best interests.
Do I have to go to family dispute resolution before going to court?
Generally, yes. Section 60I of the Family Law Act 1975 (Cth) requires parties to attend family dispute resolution and obtain a certificate before filing most parenting applications, unless an exception applies — for example, in cases involving family violence, child abuse, or urgency. Whether an exemption applies to your situation should be checked with a solicitor.
What happens if there is a history of family violence?
Any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies, must be considered by the court as part of the safety factor under section 60CC(2A). This applies whether or not the person concerned had parental responsibility for the child.
Can parents agree on arrangements without going to court?
Yes. Many parents agree arrangements through a parenting plan, or formalise them as consent orders filed with the court, without a contested hearing. This is often faster and less costly than contested proceedings, provided the arrangements are safe and workable for the child.
Does the law treat Aboriginal and Torres Strait Islander children differently?
The general considerations in section 60CC(2) apply to every child. For an Aboriginal or Torres Strait Islander child, the court must also separately consider the child’s right to enjoy their culture, including connection to family, community, country and language, and the likely impact of any proposed order on that right (s 60CC(3)).
Speak with Caspian Legal
If you need advice on parenting arrangements, contact Caspian Legal on 02 7264 3200 or visit caspianlegal.com.au to arrange a consultation. We can advise on parenting plans, consent orders, and contested parenting proceedings.
Reviewed by Ryan Lasaki, Principal Solicitor, Caspian Legal.
Last updated: 1 September 2026.
This article is general information only and does not constitute legal advice. It should not be relied upon as a substitute for advice tailored to your individual circumstances. Every family’s situation is different, and outcomes in parenting matters depend on the specific facts of each case. If there is any risk to a child’s safety, seek urgent assistance from police, a family violence support service, or the court.
Sources
- Family Law Act 1975 (Cth), s 60CA (best interests paramount consideration), AustLII — https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60ca.html
- Family Law Act 1975 (Cth), s 60CC (how a court determines a child’s best interests), AustLII — https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html
- Family Law Act 1975 (Cth), s 61DAA (effect of joint decision-making orders), AustLII — https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61daa.html
- Family Law Act 1975 (Cth), s 60I (family dispute resolution before applying for an order), Federal Register of Legislation — https://www.legislation.gov.au/C2004A00275/latest
- Family Law Amendment Act 2023 (Cth), Schedule 1 (parenting framework reforms), AustLII — https://classic.austlii.edu.au/au/legis/cth/num_act/flaa2023194/sch1.html
- Federal Circuit and Family Court of Australia, “Parenting orders — what you need to know” — https://www.fcfcoa.gov.au/fl/pubs/parenting-orders
- Federal Circuit and Family Court of Australia, Parramatta registry — https://www.fcfcoa.gov.au/court-locations/NSW/Parramatta
- Attorney-General’s Department, “Family Law Amendment Act 2023” — https://www.ag.gov.au/families-and-marriage/families/family-law-reform
