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Previously when determining what is in a child’s best interest, the court was to consider two primary factors and thirteen additional factors found at section 60CC of the Family Law Act 1975. When making parenting orders, these factors are in addition to the presumption regarding shared parental responsibility and considerations of equal, or substantial and significant time arrangements.

From 6 May 2024, 60CC was simplified so that the considerations for a child’s ‘best interests’ went from fifteen factors to six factors for all children plus an additional factor for Aboriginal and Torres Strait Islander children.

The six factors include:

• What arrangements promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm.
  The child’s safety includes safety from being subjected to or exposed to family violence, abuse, neglect or other harm.
  In considering this factor, the Court is required to consider 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.
• Any views expressed by the child.
• The developmental, psychological and emotional needs of the child.
• 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 and emotional needs.
• 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.
• Anything else that is relevant to the particular circumstances of the child.

These considerations, although more concise, overlapped with many of the previous considerations.

For parenting matters, there are three options available to reflect your agreement. They are either an informal agreement, a Parenting Plan or a Parenting Consent Order.

Informal Agreement

This can be a verbal agreement or a written agreement that isn’t signed by either parent. An informal agreement is not enforceable if a parent does not follow it.

Parenting Plan

A Parenting Plan is an informal agreement between parents that is not approved by a Court and is not legally enforceable. Whilst there is no penalty for breaching the Parenting Plan, they may be appropriate where parents get along well and want flexibility instead of a binding court order.

Parenting Plans can include a wide range of issues regarding a child’s day-to-day and long term care, such as:

• Where and with whom a child will live.
• With whom the child will spend time.
• With whom the child will communicate and how.
• Where a child will go to school.
• The allocation of parental responsibility (e.g. school, religion).
• The form of consultation parents will have with each other regarding decisions to be made concerning a child’s care, welfare and development.
• The process of dispute resolution between parents and of varying a Parenting Plan, if and when necessary.
• Issues regarding Child Support.

Consent Order

A Consent Order is a written agreement that is approved by a Court. The relevant agreement is drafted in legal terms and signed by the parties. It is accompanied by an Application for Consent Orders which will include details about the parties and each of the children. This is as the Court will only make the proposed orders into an order of the court once it is satisfied that the orders will be in the “child’s best interest”.

Once the order is issued from the Court, the orders will be a legally binding agreement and the court can impose penalties if one or both of the parties refuse to follow the Orders. A Court can only penalise a party for breaching an order if a Contravention Application is filed.

If you and your ex-partner cannot agree to the parenting arrangements, then an application can be made to the Court for parenting orders. Parents are however required to make a genuine effort to resolve their dispute by family dispute resolution, before they make a parenting application in the Federal Circuit and Family Court of Australia.

Parties are required to have attended upon, and obtained a certificate (Section 60I) from, a Family Dispute Resolution Practitioner, before they can file an application. There are limited exceptions to the requirement to attend family dispute resolution, which include:

• Where the application is urgent; or
• One or more of the parties is unable to participate effectively in family dispute resolution.