Family Law Act 1975 update: Prioritising child safety and best interests in parenting decisions

The Family Law Amendment Act 2023 (Cth) came into effect on 6 May 2024, introducing legislative amendments to the Family Law Act 1975 (the Act) in respect to parenting proceedings for married couples.

On 10 February 2025, part of the Family Court Amendment (Commonwealth Reforms) Act 2024 came into effect, introducing similar provisions concerning children to the Family Court Act 1997 (WA) (Family Court Act) for children whose parents were not married. The changes mirror the Commonwealth reforms.

Two of the more significant amendments relate to:

1. how the Court determines what is in the best interests of the child; and
2. how the Court determines who has parental responsibility.

We set out the specifics of these amendments below.

Best interests of the child

Part VII of the Act provides the legislative framework for how the Family Court determines matters relating to children and parenting (Part V of the Family Court Act).

The objectives of Part VII (Part V of the Family Court Act) include ensuring that the best interests of the child are met, including ensuring their safety.

With the introduction of the legislative amendments, when determining parenting matters, the Court must determine what is in a child’s “best interests” according to the new section 60CC of the Act (Section 66C of the Family Court Act).

In doing so, the Court must consider the following:

1. 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 each person who has care of the child (whether or not a person has parental responsibility for the child). When considering these matters, the Court must include consideration of: 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 or has applied to the child or a member of the child’s family.
2. Any views expressed by the child (as ascertained by an Independent Children’s Lawyer (ICL), Family Consultant, or other qualified expert). The legislative amendments also introduced a requirement (duty) for the ICL to meet with the child and provide the child the opportunity to express their views in relation to matters to which the proceedings relate. The ICL may propose not to perform this duty if the child is under 5 years of age, does not want to meet with the ICL or express their views, or there are exceptional circumstances that justify not performing this duty, noting that the Court must be satisfied that those exceptional circumstances exist.
3. The developmental, psychological, emotional and cultural needs of the child. 
4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs. 
5. The benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so.
6. Anything else that is relevant to the particular circumstances of the child.

In considering what is in the best interest of an Aboriginal or Torres Strait Islander (ATSI) child, the Court must also consider additional matters (additional considerations) in relation to the child’s right to enjoy their ATSI culture by having the support, opportunity and encouragement necessary, as well as, the likely impact any proposed parenting order will have on that right.

When parents reach an agreement, however, the Court may, but is not required to, have regard to all or any of the general and/or additional considerations when considering whether or not to make an order with the consent of the parties to the proceedings.

Parental responsibility

First and foremost, it must be understood that parents do not have “rights” concerning their child. Parents have responsibilities. Other family members such as grandparents also do not have “rights” concerning grandchild. The law is clear on this.

Parental responsibility means all the duties, powers, responsibilities, and authority which, by law, parents have concerning their child and includes making decisions such as where the child lives, is educated, what medical treatment the child receives and if the child is exposed to any kind of religion.

Parental responsibility is not to be confused with the amount of time a child spends with each parent.

Before the legislative amendments, in the absence of reasonable evidence that it was not in the best interests of the child for there to be equal shared parental responsibility, including evidence of abuse of a child in the family or evidence of the child being subjected to or exposed to family violence, then the Court would ordinarily make orders for equal shared parental responsibility.

There is no longer a presumption of equal shared parental responsibility. The Court will now make orders that it considers to be in the best interests of the child.

The Court may allocate sole or joint decision-making responsibility in relation to all or specified major long-term issues concerning a child.

For example, the Court may make orders for joint decision-making responsibility concerning a child’s name, education and health and, yet it may make orders allocating sole decision-making responsibility to one parent concerning a child’s religious and cultural upbringing.

If safe to do so, parents are encouraged to consult each other about major long-term issues for a child and, in doing so, have regard to the best interests of the child as the paramount consideration.

In the event the Court does make a parenting order that provides for joint decision-making in relation to major long-term issues concerning a child, then unless specified in an order, the parents with joint decision-making responsibility are required to:

• consult each other in relation to each such major long-term decision; and
• make a genuine effort to come to a joint decision.

There is no longer a requirement that those decisions be made jointly.

There is no need for parents to consult each other about decisions that are made in relation to day to day issues concerning the child, such as what the child eats or wears as these are not usually major long-term issues. The Court will not ordinarily interfere with how parents see fit to care for the child unless the welfare of the child will be clearly advanced by doing so.