The Paramount Principle – Best Interests Come First

Section 60CA of the Family Law Act states that a child’s best interests must be the court’s paramount consideration in any parenting decision. Everything else (parents’ wishes, convenience, money) is secondary.

To decide where those best interests lie, the court looks at the detailed factors in s 60CC. These include:

• the benefit of a child having a meaningful relationship with both parents;
• the need to protect the child from harm, abuse or family violence;
• practical issues such as schooling, culture and the capacity of each parent to meet everyday needs.

Because safety is fundamental, protection from harm outweighs all other factors if there is a conflict.

Equal Shared Parental Responsibility? – What It Really Means

Unders 61B and s 61C, every parent automatically has parental responsibility which is the authority to make long-term decisions about health, education, religion and so on.

Important points to remember:

• Responsibility is about decision-making, not about equal time.
• Parents must consult each other on major issues if the presumption applies.
• The court can tailor arrangements (for example, sole parental responsibility for medical treatment) where the child’s best interests demand it.

Parenting Plans and Consent Orders – Agreements Outside the Courtroom

The Act actively encourages parents to reach agreement themselves:

• Parenting plan (s 63C): a written, dated agreement covering whom the child lives with, when they spend time with each parent, communication, travel and any other issue. It is flexible and can be changed by a new plan, but it is not automatically enforceable.
• Consent order (s 65D): the same terms filed with the court and sealed as an order. It carries the force of law and is enforceable like any other court order.

A well-drafted plan or consent order gives clarity, reduces conflict and keeps the focus on the children.

Family Dispute Resolution – The Mandatory First Step

Except in limited urgent or risk situations, parents must try Family Dispute Resolution (mediation) before applying to court. Section 60I requires a section 60I certificate from an accredited practitioner confirming that:

• both parties attended and attempted genuine negotiation; or
• one party refused or failed to attend; or
• the matter was inappropriate for mediation (for example, family violence).

This gate-keeping rule prevents unnecessary litigation and promotes cooperative parenting.

When the Court Becomes Necessary – Parenting Orders

If agreement is impossible or safety is an issue, either parent (or another significant person) may apply for parenting orders under s 65C. The court can decide:

• With whom the child lives (formerly “custody”)
• Time and communication with the other parent
• Specific issues such as schooling, medical treatment, overseas travel
• Relocation or recovery if a child is taken without consent

The court may appoint an Independent Children’s Lawyer (s 68L) to represent the child’s interests, order expert family reports, and impose interim arrangements while the case proceeds. Every hearing returns to the best-interests test in s60CA.

Compliance and Enforcement

Once an order exists, each person named must comply. Division 13A sets out a sliding scale of consequences for breaches:

• make-up time or varied  arrangements;
• attending parenting courses;
• fines, bonds or (in extreme cases) imprisonment.

The Act therefore combines flexibility, allowing orders to be changed when circumstances change, with real teeth to deter deliberate contraventions.

Avoiding Court – Practical Tips for Parents

1. Keep communication child-centred. Ask, “How does this help our child?”
2. Use Family Dispute Resolution early. Trained mediators can defuse tension and suggest creative solutions.
3. Document agreements clearly. A parenting plan or consent order prevents misunderstandings.
4. Prioritise safety.  If there is family violence, seek urgent legal advice and protective orders.
5. Stay flexible. Children’s needs evolve – successful co-parenting often means revisiting arrangements calmly.

How a Specialist Family Lawyer Helps

• Clear advice on your rights, obligations and realistic outcomes.
• Drafting parenting plans or consent orders that stand up over time.
• Representation in mediation and, if required, court proceedings.
• Risk management where family violence, substance abuse or relocation issues arise.
• Enforcement or variation of existing orders when circumstances change.