When parents separate, one of the most difficult and emotional issues to resolve is how children will be cared for moving forward.

If parents cannot reach agreement, the Federal Circuit and Family Court of Australia (FCFCOA) has the power to make legally binding parenting orders.

The Court’s Guiding Principle: The Child’s Best Interests

In all parenting cases, the Court must treat the best interests of the child as the paramount consideration.

This means the Court’s focus is not on what is fair to the parents, but on what arrangement will best promote the child’s safety, wellbeing, and development.

Recent changes to the Family Law Act 1975 (Cth) have reinforced this child-focused approach by removing rigid presumptions and allowing the Court greater flexibility to tailor orders to each family’s circumstances.

Which Court Hears Parenting Matters?

Parenting disputes are dealt with in:

• Division 2 of the FCFCOA (the majority of parenting cases), or

• Division 1 (more complex matters involving serious family violence, abuse, or legal complexity).

Regardless of the division, the same legal principles apply.

Key Factors the Court Considers

The Family Law Act sets out a range of factors the Court must consider.

These can broadly be grouped into two main areas.

1. The Child’s Safety and Protection

   The Court places significant weight on protecting children from harm.

   This includes consideration of:
   
   

   • Family violence, abuse, neglect, or coercive and controlling behaviour

   • Any risk of physical or psychological harm

   • Each parent’s ability to provide a safe and stable environment

   Where safety concerns exist, they will generally outweigh other considerations.
   
   

2. The Child’s Wellbeing and Development

   The Court also considers factors relevant to the child’s emotional and developmental needs, including:
   
   

   • The benefit of the child having a meaningful relationship with each parent, where it is safe to do so

   • The child’s views, taking into account their age and maturity

   • The nature and quality of the child’s relationship with each parent and other significant people

   • Each parent’s capacity to meet the child’s emotional, educational, and developmental needs

   • Practical issues such as distance, school commitments, and routines

   • Each parent’s willingness to support the child’s relationship with the other parent

   • Any cultural considerations, including for Aboriginal and Torres Strait Islander children

   The Court weighs all relevant factors together—there is no single deciding issue in most cases.
   
   
   

Parenting Time: No Presumption of 50/50

A common misconception is that the Court starts from an assumption of equal time.

This is not correct.

The Court does not aim to divide time evenly between parents.

Instead, it considers what arrangement is reasonable, practical, and in the child’s best interests.

Depending on the circumstances, this may involve:

• Equal time

• Substantial and significant time

• Limited or supervised time with one parent

Each case is assessed individually.

Parental Responsibility and Decision-Making

Parental responsibility relates to major long-term decisions, such as education, health care, religion, and a child’s name.

The Court may order:

• Shared parental responsibility

• Sole parental responsibility to one parent

• Specific decision-making arrangements on particular issues

The focus is on whether parents can make decisions cooperatively and in the child’s best interests.

Evidence Considered by the Court

To determine appropriate parenting orders, the Court may consider:

• Affidavit evidence from each party

• Family violence orders or child protection records

• Expert evidence, including Family Reports prepared by psychologists or social workers

• Evidence from teachers, medical practitioners, or other professionals

In some cases, the Court appoints an Independent Children’s Lawyer (ICL) to represent the child’s interests.

Emphasis on Early Resolution

Before commencing court proceedings, parents are usually required to attempt family dispute resolution (mediation) unless exemptions apply (such as family violence or urgency).

Even after proceedings have started, the Court strongly encourages negotiated outcomes where possible.

Agreed arrangements can be formalised through consent orders, which are often less stressful, faster, and more cost-effective.

Parenting Orders Can Change

Parenting orders are not permanent.

If there is a significant change in circumstances—such as new safety concerns, relocation, or changes in a child’s needs—orders may be reviewed or varied.

How Munce Legal Can Help

Parenting disputes can be complex and emotionally challenging.

Obtaining clear legal advice early can help you understand your rights, obligations, and realistic outcomes.

Our family law team assists clients with:

• Parenting negotiations and mediation

• Consent orders

• Urgent and high-conflict parenting disputes

• Court proceedings in the FCFCOA

We focus on practical, child-focused solutions while protecting your legal position.

Book in for a Free 30 Minute Consult below, with Munce Legal today.