Parenting & Children's Matters

Best Interests of the Child — The Primary Consideration

The best interests of the child is the central principle that guides all parenting decisions under the Family Law Act 1975. The Act provides a list of factors that the court must consider when determining what is in the child's best interests. These are divided into primary considerations and additional considerations. The primary considerations are the benefit of the child having a meaningful relationship with both 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. Where these considerations conflict, the need to protect the child takes precedence. Additional considerations include the child's views, the nature of the child's relationship with each parent, the willingness of each parent to facilitate a relationship with the other parent, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the child's emotional and intellectual needs, the child's maturity, and any family violence orders that are in place. In Queensland, the court may also appoint an independent children's lawyer to represent the child's interests in contested proceedings.

Consent Orders and Parenting Plans

Consent orders and parenting plans are two ways to formalise parenting arrangements without the need for a contested court hearing. Consent orders are orders made by the Federal Circuit and Family Court of Australia that reflect an agreement reached by both parents. They are legally binding and enforceable, meaning that if one parent does not comply with the orders, the other parent can seek enforcement through the court. Consent orders can cover where the child lives, the time the child spends with each parent, how parental responsibility is shared, and other aspects of the child's care. Parenting plans are less formal agreements that are not filed with the court and are not legally binding. However, if a parenting plan is registered and the court makes consent orders that reflect the plan, the plan effectively becomes enforceable. Parenting plans are often used when parents want flexibility to adjust arrangements as the child grows and circumstances change. Both consent orders and parenting plans can address practical matters such as school holidays, birthday arrangements, extracurricular activities, and communication methods, including telephone and video calls for long-distance parenting arrangements.

Equal Time vs Substantial and Significant Time

When making parenting orders, the court must consider whether equal time with both parents is reasonably practicable and in the child's best interests. Equal time means the child spends approximately the same amount of time with each parent, typically a week-about arrangement or a 5/5/2/2 pattern. For equal time to be ordered, the court must be satisfied that it is reasonably practicable, considering factors such as the distance between the parents' homes, the parents' capacity to implement the arrangement, the child's age and developmental needs, and the parents' ability to communicate and cooperate. If equal time is not appropriate, the court must consider whether substantial and significant time is in the child's best interests and reasonably practicable. Substantial and significant time means time that includes weekends and holidays as well as weekdays, allowing the parent to be involved in the child's daily routine and special occasions. This can include alternate weekends from Friday to Monday, half of school holidays, special days like birthdays and Father's Day or Mother's Day, and time on other special occasions. The key distinction is that substantial and significant time goes beyond simple alternate weekend arrangements.

Parenting & Children's Matters FAQs (Queensland Law)