How do Judges Make Parenting Orders?

**Part VII of the Family Law Act, 1975 (Cth) – “Children”**

Various amendments were introduced in May 2024 to Part VII of the Family Law Act, 1975 (Cth) entitled “Children” (“the Act”). These amendments simplify and reduce the list of matters which a Judge must consider when deciding the outcome of a parenting dispute and making parenting orders.

There is now a greater emphasis to ensuring the safety of the children the subject of the dispute. The amendments did not remove some important requirements under the Act as described below. However, the amendments did away with legal (rebuttable) presumptions in the Act that the parents of a child should:

Have equal shared parental responsibility for the children; and
Should spend equal time or substantial time with their children.

The concept of the safety of the child and the safety of persons who have parental responsibility for the child are emphasised as part of the amendments to the legislation.

The Requirement to attempt to Resolve the Dispute

There is still an important requirement that parties must attend counselling/mediation and make a “genuine attempt” to resolve their dispute before they are entitled to commence family law court proceedings. An accredited family consultant must have attempted counselling/mediation and issued a Certificate (a section 60(I) Certificate) if the negotiations failed to resolve the dispute.

There are some exemptions to the requirement for a section 60(I) Certificate or example, in cases where there is urgency, or domestic violence was allegedly committed by one parent against the other.

Paramount Consideration

Sad eyes of a child representing parenting orders and child safety.

The ‘paramount’ consideration when making a parenting order is the child’s best interests.¹

Arrangements to promote safety

The Court is required to come to a view about what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child).²

Beach scene with lifeguard and surfboard representing parenting and child safety

Views expressed by the child

The Court must consider the child’s expressed views if any.³ Traditionally, the Court will interpret a child’s expressed views considering the child’s circumstances including his/her maturity.

Child’s needs – developmental, psychological, cultural

The Court must make an assessment about the developmental, psychological and cultural needs of each child when considering a family law dispute involving children.⁴

Each parent’s capacity

The Court must assess the capacity of each parent and each person who has or is proposed to have parental responsibility “developmental, psychological, emotional and cultural needs.”⁵

Benefits to a child of having a relationship with a parent/other person significant to the child

Father and daughter enjoying time together walking through a field representing parenting orders

The requirement for the Court to assess the benefit to a child to maintain a relationship with a parent or a significant other, replaced the previous legal (rebuttable presumption) that a child should have a significant relationship with each parent and spent equal or significant time with each parent.

The legal presumption has been removed but the Court can and must consider the relationships of the child with a parent or other significant persons when assessing important matters in a dispute about a child.⁶

Family Violence

An important aspect for the Court to consider in each case about a family law dispute about a child is whether there is a history of domestic violence and/or abuse and neglect involving the child or the child’s family.⁷

The child’s Right to enjoy Aboriginal or Torres Strait Islander culture

The Court is required to consider the child’s right to enjoy his/her Aboriginal or Torres Strait Islander culture including to:

to connect with, and maintain their connection with, members of the family and with the community, culture, country and language; and
to develop a positive appreciation of that culture; and
the likely impact any proposed parenting order under this Part will have on that right.⁸

The very recent amendments to the Family Law Act 1975(Cth) regarding disputes about children changes significantly the matters which a Court must consider when making parenting orders. It is important that your application factors in these new key considerations to maximize your chances of obtaining a favourable outcome

At elringtons we will devise a Case Plan with you to address the dispute, in the first instance to aim to resolve the dispute and, if required, to assist you and represent you in presenting the matter to the Court.