When a court makes a parenting order under the Family Law Act 1975 (Cth), the paramount consideration is always what is the best interests of children. That principle has not changed, and it will not change: all decisions made and actions taken by the Court should be in their “best interests”, regardless of what either parent wants or believes is fair to them personally. What has changed, and changed significantly, is how the Court actually works out what that means in practice.
For many years, the section of the Family Law Act that people looked to for this was section 60CC, which set out a structured list of two primary considerations and 14 secondary considerations. Many of the articles you will still find online, including some written by other Queensland and interstate firms, describe that old framework as though it is still the law. It is not, following amendments to the Family Law Act 1975 (Cth) that took effect in 2024.
As a family lawyer working in this area every day, we think it is important to explain both what used to apply and what actually applies now, because understanding the shift helps parents see what the Federal Circuit and Family Court of Australia is genuinely focused on when it decides how children spend their time.
The Old Framework: Two Primary Considerations And 14 Secondary Considerations
Under the previous version of the Family Law Act, section 60B set out objects and principles, and section 60CC then broke the best interests test down into a hierarchy.
The two primary considerations were:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
Importantly, where these two considerations were in conflict, the Court was directed to give greater weight to the second one, protection from harm. In other words, safety always outweighed the desire for a “meaningful relationship” with both parents, even under the old law.
SECONDARY CONSIDERATIONS FOR THE BEST INTERESTS OF CHILDREN
After addressing the two primary considerations, the old section 60CC(3) required the Court to also weigh up 14 secondary considerations. These included things like:
- any views expressed by the child, and any factors such as the child’s maturity or level of understanding that the Court considered relevant;
- the nature of the child’s relationship with each parent and with other people, including grandparents and other relatives;
- the extent to which each parent had taken, or failed to take, the opportunity to participate in decisions about major long-term issues, to spend time with the child, and to communicate with the child;
- the extent to which each parent had fulfilled their obligations to maintain the child;
- the likely effect on the child of any change in their circumstances;
- the practical difficulty and expense of a child spending time with, or communicating with, a parent;
- the capacity of each parent, and other people, to provide for the child’s needs, including emotional and intellectual needs;
- the maturity, sex, lifestyle, and background of the child and the parents;
- the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, where relevant;
- the attitude of each parent to the child and to the responsibilities of parenting;
- any family violence involving the child or a member of the child’s family;
- any family violence orders that applied to the child or family;
- the need to make an order that would minimise the likelihood of further proceedings; and
- any other fact or circumstance the Court thought was relevant.
This old structure is still worth understanding, because a lot of the underlying themes, safety, the child’s relationships, practical logistics, and each parent’s conduct, carry through into the current law. But the rigid, two-tiered structure itself no longer exists.
There Are No Longer Primary And Secondary Considerations
On 6 May 2024, significant amendments to the Family Law Act came into effect, and they apply to every parenting matter currently before the Court, regardless of when the case originally started. These amendments removed the old hierarchy entirely.
There are no longer primary and secondary considerations under the Family Law Act. Instead, the Court now works through a single, general list of considerations, none of which automatically outweighs another. Each factor is simply applied as relevant to that particular child’s circumstances.
Section 60B was also simplified. Its objects are now just:
- to ensure that the best interests of children are met, including by ensuring their safety; and
- to give effect to Australia’s obligations under the Convention on the Rights of the Child.
The New General Considerations
The Family Law Act now requires the Court to consider the following matters when deciding what is in a child’s best interests:
- Safety. What arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse, neglect, or other harm, of the child and of each person who has care of the child. Promoting the safety of the child and any person providing care is now front and centre of the entire test, and the Court must specifically consider any history of family violence, abuse, or neglect, not just current or recent concerns, as well as any family violence orders that apply or have applied.
- The child’s views. Any views expressed by the child, with the Court given broad discretion as to how much weight to give those views based on the child’s age and maturity.
- The child’s developmental, psychological, emotional, and cultural needs. Notably, this no longer references the needs of the parents, only the child.
- Capacity. The capacity of each person who has, or is proposed to have, parental responsibility to provide for the child’s developmental, psychological, emotional, and cultural needs.
- Benefit of relationships, where safe. The benefit to the child of being able to have a relationship with their parents, and with other people significant to them, such as grandparents, where it is safe to do so. The word “meaningful” has been deliberately removed from this provision. This is a genuinely important reform: the old language around a “meaningful relationship” led to a great deal of litigation, and in some cases fed a misconception that a parent had a personal right to equal or substantial time with a child. The current wording keeps the focus squarely on the child’s benefit, and on safety.
- A catch-all provision. Anything else that is relevant to the particular circumstances of the child, which preserves the Court’s broad discretion to consider matters not otherwise listed.
Where the child is Aboriginal or Torres Strait Islander, the Court must also separately consider the child’s right to enjoy their culture, including support to connect with family, community, country, and language, and the likely impact any proposed order will have on that right.
What This Means In Practice
As you can see, there are still many factors a court will weigh up when working out what is in a child’s best interests and how they should spend time with each parent. Practically speaking, the Court, family consultants, and experienced family lawyers will still look closely at things such as:
- how close each parent lives to the child’s school;
- how close the parents live to each other;
- who has historically been the primary carer;
- how old the children are;
- what the children are used to, including their existing routine;
- whether there are siblings, and whether they should remain together;
- the capacity each parent has to actually care for the children day to day; and
- the preparedness of each parent to facilitate a genuine relationship between the child and the other parent, and the child’s extended family.
When it comes to how children spend time, sometimes referred to informally as a parenting agreement Qld families put in place, it is often assumed by separated parents that the outcome should automatically be an equal shared care arrangement.
That simply is not the case for every family, and it certainly does not work for every child. It depends entirely on the individual circumstances of your family, your children’s ages, and the level of safety and cooperation between the parents.
Does Age Affect How Time Is Divided?
Age is one of the most practical factors the Court and family consultants consider, even though the legislation does not set out fixed rules. As a general rule, and this is the advice we typically give clients, the Court prefers to see that very young children have one consistent, primary home, with significant time spent with the other parent.
What counts as “significant time” varies depending on the child’s age, how far apart the parents live, and the other considerations discussed above. As children grow older, that significant time with the non-residing parent often extends gradually, sometimes into a shared care arrangement, but there is no fixed formula.
If you are researching child custody schedules by age in Australia, it helps to know that courts and family consultants generally favour shorter, more frequent blocks of time for infants and toddlers to protect attachment and routine, moving toward longer weekend and holiday blocks, and eventually overnight stays, as children reach school age and their teenage years.
There are no hard and fast rules, ages, or distances that determine the outcome. Every family is different, and orders should be tailored accordingly rather than copied from a generic template or another family’s arrangement.
It is important that both parents remain child-focused and genuinely facilitate meaningful time for the child with the other parent and extended family, where it is safe to do so. Keep in mind that this is not a competition about where children live.
It is about quality time with each parent, and about giving children the structure and stability they need to thrive. A parent is not “less of a parent” simply because they spend less time with the child than the other parent does.
Related Issues That Often Come Up In Parenting Matters
Because best interests disputes rarely exist in isolation, several related legal questions tend to come up alongside them. A few of the most common ones we are asked about include:
Family violence orders and intervention orders
Given that safety is now the first and most heavily weighted general consideration, any existing intervention order is directly relevant to a parenting matter. Parents sometimes ask us about the reasons to revoke an intervention order, particularly once circumstances have genuinely changed.
Courts will generally only consider revoking or varying an order where the risk that led to it no longer exists, both parties consent, or there is clear evidence the order is no longer necessary. Because any history of family violence must still be considered by the Court even after an order is revoked, this is a decision that should never be made without proper legal advice.
Property and parenting matters running together
Parenting and property proceedings are legally separate, but they often unfold at the same time following separation. People sometimes ask about a 70/30 divorce settlement in Australia while they are also working through parenting arrangements.
There is no fixed percentage split under the Family Law Act for either issue: property settlements are assessed on contributions and future needs, just as parenting arrangements are assessed on the child’s best interests, not on what feels “fair” to either parent in isolation. Questions like whether a partner can take half your house in Australia or how the family home will be treated often arise for the same clients dealing with a parenting dispute.
Decisions about a child’s schooling
Major long-term decisions, including education, are specifically captured by the best interests factors. This is why disputes over changing a child’s school without the other parent’s consent, or whether one parent can enrol a child in school without the other parent’s permission, are so common.
Parental responsibility, and who gets a say in these decisions, is directly tied to the best interests framework discussed above.
Lifestyle and income considerations
The old “lifestyle and background” secondary consideration, and the current, broader catch-all provision, mean that a parent’s lifestyle can sometimes become relevant, though rarely determinative on its own. We are occasionally asked questions like is OnlyFans illegal in Australia in the context of a parent’s income or online activity.
It is not illegal, and lawful income of this kind does not, by itself, make a parent unfit or unsafe. The Court’s focus remains on the child’s safety and needs, not on judging a parent’s legal work or how they earn a living.
De facto and blended families
With cohabitation rates rising across Australia, more parenting matters now involve step-parents, blended households, or children from more than one relationship.
The best interests framework applies equally to these families, and the relationships a child has with other significant people, not just their biological parents, can be relevant under the current general considerations.
Name changes following separation
Some parents also ask us how to change back to their maiden name once parenting and property matters have settled.
While this is a separate administrative process, it is a question we are asked often enough by clients going through parenting disputes that it is worth mentioning here.
Get Advice Before You Make Decisions About Your Children
Best interests disputes are some of the most sensitive matters a family can face, and the law in this area has changed substantially in the last two years. Relying on outdated information, including some of what is still published online by other firms, can genuinely affect how you approach negotiations or court proceedings.
At Collective Family Law Group, our team stays across every legislative change so that the advice we give reflects the law as it currently stands, not as it used to be. Our principal Hayder Shkara, together with family lawyers including Caralee Fontenele and Julie Fotheringham, regularly advise parents across Queensland on parenting arrangements, from straightforward parenting plans through to contested best interests disputes before the Court. You can meet the rest of our team here.
If you are trying to work out what is in your children’s best interests, or you need help responding to a parenting proposal from the other parent, our Collective Family Law team can help you understand where you stand under the current law.
Take the first step towards resolving your family law issues by scheduling a free family law consultation with our expert divorce lawyers Gold Coast. Book your free 45-minute initial consultation here.
This article is general information only and does not constitute legal advice. Every family and every child’s circumstances are different, and you should speak with a qualified family lawyer about your specific situation before acting on anything discussed above.
Frequently Asked Questions
What factors are considered in the best interest of the child?
Since 6 May 2024, the Family Law Act requires the Court to consider six general factors: what arrangements would promote the safety of the child and any person who cares for them, any views expressed by the child, the child’s developmental, psychological, emotional, and cultural needs, the capacity of each person with or proposed to have parental responsibility, the benefit to the child of a relationship with their parents and other significant people where it is safe to do so, and anything else relevant to the child’s particular circumstances. Where a child is Aboriginal or Torres Strait Islander, their right to enjoy that culture is also specifically considered. These replaced the old two primary considerations and 14 secondary considerations that applied before the 2024 reforms.
What do you mean by the best interests of the child?
The best interests of the child is the legal principle, set out in section 60CA of the Family Law Act, that requires the Court to treat a child’s wellbeing and safety as the single most important factor when making any parenting order, above the personal preferences or perceived rights of either parent. In practice, it means all decisions made and actions taken by the Court should be in the child’s best interests, assessed by looking at their safety, their views, their developmental and emotional needs, and their relationships, rather than by treating time with a child as something a parent is automatically entitled to.
What is the 7 7 7 rule for parents?
The “7 7 7 rule” is not a recognised legal principle or test used by Australian family law courts. It is more commonly referenced in general parenting and child development contexts, unrelated to custody law. If you have come across it in the context of parenting time, you may be thinking of informal rules of thumb some family lawyers and family consultants use when advising on gradual increases in time for young children, such as building up overnight stays with a non-resident parent incrementally as a child gets older. These are practical guides only, not legislated rules, and the Court will always apply the current best interests considerations rather than a fixed formula.
What is the best interest of the child principle and how does it apply to child protection?
The best interests principle is the paramount consideration the Court applies in every parenting matter, and it applies just as strongly in child protection contexts as it does in ordinary parenting disputes between separated parents. Where there are concerns about abuse, neglect, or family violence, safety is now explicitly the first general consideration the Court must assess, and any history of family violence or existing family violence orders must be taken into account. This means that in matters involving genuine child protection concerns, the Court’s assessment of safety, and of each parent’s or carer’s capacity to protect the child, will typically carry the greatest weight in shaping the final parenting orders.
