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07/03/2026

FAMILY LAW

What is in my child’s best interests? How the Court decides parenting cases

When parents separate, one of the hardest questions is: “What arrangements are in my child’s best interests?” If parents can’t agree, the Federal Circuit and Family Court of Australia can make parenting orders.

The law does not ask what is “fair” to each parent. It asks what arrangements best promote the child’s welfare and development, with the child’s best interests as the paramount consideration. The Court decides this question by applying the framework in Part VII of the Family Law Act 1975 (Cth) (the Act).

Since 6 May 2024, the best-interests factors are set out in a streamlined way in s 60CC, described as “general considerations” (plus additional cultural considerations for Aboriginal and Torres Strait Islander children).

Step 1: The Court starts with s 60CC (the best-interests “checklist”)

Section 60CC requires the Court to consider a set of general considerations when deciding what is in a child’s best interests. These include:

Safety
What arrangements would promote the safety of:

the child; and

each person who has care of the child (even if they are not a parent),
including safety from family violence, abuse, neglect, or other harm.

The child’s views
Any views expressed by the child (with weight depending on age/maturity and circumstances).

The child’s needs
The child’s developmental, psychological, emotional and cultural needs.

Parental capacity
The capacity of each person who has (or is proposed to have) parental responsibility to meet the child’s needs.

Relationships (where safe)
The benefit to the child of being able to have a relationship with the child’s parents, and other significant people, where it is safe to do so.

Anything else relevant
Any other matter relevant to the child’s particular circumstances.

If the child is an Aboriginal or Torres Strait Islander child, the Court must also consider additional cultural considerations, including connections to family, community, culture and country.

Safety is central (and it is broader than “physical danger”)

Safety is not limited to physical safety. The Court considers safety from:

being subjected to family violence, abuse or neglect; and

being exposed to family violence or other harmful behaviour.

Family violence includes coercive control

Family violence is defined broadly. It can include violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful. It can also include patterns of controlling behaviour such as financial control, isolation, stalking/surveillance, property damage and repeated derogatory taunts.

The Court looks at behaviour in context and its impact, not just isolated incidents.

The Court considers history + existing family violence orders

When considering safety, the Court can take into account:

any history of family violence, abuse or neglect; and

any current or past family violence orders affecting the child or members of the child’s family.

“Unacceptable risk” and safeguards

The Court’s job is not only to decide what happened in the past, but also to make orders that protect children and carers from future harm. Where safety concerns exist, the Court may make protective conditions rather than “all or nothing” outcomes—for example:

supervised time;

safe changeovers;

conditions about alcohol/drugs;

limits on communication; or

orders about third-party involvement.

The child’s views: important, but not a “vote”

Children are not required to express views. When views are available, the Court may consider them, but the weight depends on the child’s age, maturity and circumstances.

Children are not expected to “choose” between parents.

The child’s needs and each parent’s capacity

The Court looks at what the child needs to thrive (emotionally, psychologically, developmentally, culturally) and how each parent can meet those needs.

This often involves practical questions such as:

routines, sleep, school and homework;

medical needs and therapy supports;

a parent’s insight and willingness to support the child’s emotional needs; and

the capacity to shield the child from adult conflict.

Relationships: “where safe to do so”

The law recognises children often benefit from meaningful relationships with both parents and other significant people—but only where it is safe.

This is where the Court often has to balance:

the benefit of relationships; against

the risk of harm (including emotional or psychological harm), and whether safeguards can manage that risk.

Step 2: Decision-making responsibility is no longer “presumed” equal

A common myth is that separation means “50/50” or “equal shared parental responsibility.” That is not correct.

There is no automatic presumption that parents must share decision-making equally, and there is no automatic pathway to equal time.

Instead, the Court allocates decision-making responsibility according to what is in the child’s best interests. A parenting order can provide for joint or sole decision-making about major long-term issues (for example, education, health, religious/cultural upbringing, name, and significant changes to living arrangements).

If the Court orders joint decision-making, it usually requires parents to consult each other and make a genuine effort to reach agreement.

Step 3: Interim hearings vs final hearings (why results can differ)

Many matters have interim orders first, then final orders later.

Interim hearings are usually decided on limited written material (affidavits and submissions) without cross-examination. Because the evidence is not fully tested at that stage, the Court often focuses on:

immediate safety and risk management; and

stability and workable short-term arrangements.

Final orders are made after fuller evidence is available (or by agreement).

Evidence and procedure: risk allegations must be properly raised

If parenting proceedings are filed, the Court expects risk issues to be identified properly and supported by evidence.

Where there are family violence or child safety concerns, the Court can take additional steps, including obtaining reports, making protective orders, and ensuring orders are workable and safe.

Practical tips: what the Court tends to value (because it connects to s 60CC)

Every case turns on its facts, but in general, the Court tends to be influenced by evidence of:

Child-focused parenting (routines, schooling, medical follow-through, emotional support)

Insight and protective capacity (especially where there are safety concerns)

Willingness to support safe relationships with the other parent and significant people (noting safety comes first)

Practical, workable proposals (clear changeovers, travel arrangements, communication methods, holiday plans)

Reducing conflict exposure (shielding the child from adult disputes)

Frequently asked questions
Does “best interests” mean equal time?

No. There is no automatic 50/50 rule. The Court makes whatever parenting orders best promote the child’s best interests.

Will the Court “ignore” family violence if it happened in the past?

No. Past family violence can be relevant to both the child’s wellbeing and future risk. The Court considers safety and can include safeguards in parenting orders.

Do the child’s wishes decide the case?

Not necessarily. The Court may consider the child’s views, but it depends on age, maturity and circumstances, and children are not required to express views.

Why do interim orders sometimes feel “unfair”?

Interim proceedings are decided on limited material without cross-examination, so the Court often focuses on immediate risk management and stability pending a final hearing.

Need advice about your child’s best interests?

If you’re negotiating parenting arrangements or facing Court proceedings, early advice can help you:

frame proposals in a way that aligns with the law;

prepare evidence properly; and

prioritise safety and stability for your child.

This article is general information only and is not legal advice.

07/03/2026

FAMILY LAW

Reversal of care in parenting cases (when the Court changes who the children live with)

“Reversal of care” is shorthand for a parenting outcome where the Court orders that children stop living primarily with the current carer (often the parent they have been living with for some time) and instead live primarily with the other parent. It can be ordered on an interim (temporary) basis, but it most commonly appears in final orders after a trial, because it is a major change for children and usually requires careful evidence and planning.

A reversal of care is not meant to punish a parent. The Court’s task is always to make orders that best promote the children’s best interests, with safety and wellbeing central (including emotional and psychological safety). One of the key ways reversal of care arises is where the Court concludes that, despite the disruption, the children face a greater risk of harm if they remain where they are.
What the Court is looking for

Even where children appear settled, the Court can still order a change if the evidence shows that remaining in the current arrangement is unsafe or harmful, or that the children’s long-term welfare is being undermined.

A useful illustration is Cadriel & Gabbey (No 5) [2023] FedCFamC1F 1028, a case in which the father and the Independent Children’s Lawyer sought a reversal of primary care, even though the father had become “effectively a stranger” to the younger child and the change was obviously significant. The Court considered the short-term and long-term impacts and ultimately concluded there was a greater risk of harm if the children stayed with the mother, making orders that they live with the father.
Common scenarios where reversal of care becomes a real risk
1) The Court finds the current arrangement exposes children to unacceptable harm (including emotional/psychological harm)

Reversal of care is most likely where the Court is persuaded that the children are exposed to harm in the current household—whether that harm is physical, or psychological/emotional.

In Cadriel & Gabbey (No 5), the Court specifically weighed the disruption of removing children from a home where they had attachment and apparent stability, against the evidence of long-term harm if they remained in the mother’s care and were exposed to what the Court found to be a “false narrative” about the father.

The Court ultimately found the father did not present a risk to the children, but the children were at risk of emotional and psychological harm if they remained in the mother’s care.
2) Entrenched refusal to support (or even recognise) the other parent’s role

A recurring feature in reversal of care cases is where one parent is unable or unwilling to support the children having a relationship with the other parent (when it is safe to do so), including refusal to provide information, refusal to facilitate time, or an entrenched campaign to exclude the other parent entirely.

In Cadriel & Gabbey (No 5), the Court recorded that the mother’s position was that the children should have no relationship with the father and she was “resolute” that she would not comply with orders facilitating a relationship.
This fed directly into the Court’s conclusion that there was effectively no workable middle ground available on the evidence.
3) Alienation-type dynamics and “emotional harm”

Australian courts have repeatedly recognised that a parent’s conduct in trying to turn children against the other parent can itself be harmful and may justify significant changes.

Your consolidated materials reference Goldman (No 2) [2017] FamCA 531, where the judge reversed care from mother to father, finding the mother had been focused on punishing the father and turning the children’s affections away from him, causing emotional harm and representing an unacceptable ongoing risk of such harm continuing.
4) Serious allegations: the Court must decide what is proved, and what risk exists

Reversal of care cases often involve serious allegations (family violence, sexual abuse, neglect). The Court may:

make a positive finding about what occurred (if satisfied on the civil standard), and/or
make a risk assessment about what may occur in future and what arrangements best protect the child.

The appeal decision in Isles & Nelissen [2022] FedCFamC1A 97 explains the distinction between:

findings of fact about whether abuse occurred; and
the predictive “unacceptable risk” analysis (what the risk is, its magnitude, and whether safeguards can manage it).

The same decision also emphasises that the statutory framework (including the best interests and unacceptable risk provisions) is wide enough to deal with risk issues and should be the focus.
How the Court manages the “disruption problem” in reversal cases

Courts recognise that moving children from their primary carer can cause distress, anxiety and dysregulation, particularly if the other parent has had limited time. The question becomes whether the short-term disruption is outweighed by the long-term protection and welfare benefits.

In Cadriel & Gabbey (No 5), the judge expressly acknowledged that the proposed change would take the children “from a position of some stability to considerable uncertainty,” and noted the evidence that anxiety and distress would need to be managed.
What orders can accompany a reversal of care?

A reversal of care can come with a wide set of consequential orders—depending on the risks, practicalities and compliance concerns.
1) Sole parental responsibility and “no time” (in extreme cases)

In some cases, the Court may decide that any time with the outgoing carer cannot safely occur (at least for a period). In Cadriel & Gabbey (No 5) the final orders were stark: the children were to live with the father, and spend no time with the mother.
2) “Deliver up” orders and Recovery Orders (s 67Q)

Where the Court is concerned a parent will not comply (or compliance would create safety risks), it can order the children be delivered to the other parent at Court services, and—if needed—issue a Recovery Order.

In Cadriel & Gabbey (No 5) the Court ordered the mother to deliver up the children to the father at Court Children’s Services by a set time, and that failing compliance a Recovery Order issue under s 67Q.

The judge also explained the practical reasoning for that mechanism: medical evidence raised concerns about the mother’s likely extreme reaction and the risk created by that reaction, so the Court structured the orders to allow immediate enforcement if non-compliance occurred.
3) Injunctions and restraints (and the need for reasons)

Courts sometimes make injunctions restraining conduct (for example, communications with schools or professionals). But the appeal in Gabbey & Cadriel [2024] FedCFamC1A 60 is a reminder that these orders must be properly reasoned: the Full Court allowed the appeal in part and set aside certain injunctive orders because of an error of law arising from failure to give reasons for them.

At the same time, the Full Court otherwise upheld the primary outcome (children living with father; no contact with mother), rejecting challenges to the primary judge’s findings about psychological risk and the “false narrative” concern.
Reversal of care where final orders already exist: the “significant change” hurdle (s 65DAAA)

If there are already final parenting orders in place, a reversal of care usually requires the Court to first consider whether it should revisit (reconsider) those final orders.

Since 6 May 2024, the Act contains s 65DAAA, which provides that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances, and the Court is satisfied it is in the child’s best interests to reconsider.

The Full Court in Radecki & Radecki [2024] FedCFamC1A 246 discusses how s 65DAAA was intended to codify the long-standing “Rice & Asplund” approach (while noting debate at first instance about the exact operation of the word “consider”).
Practical takeaways (for both sides of the issue)
If you’re worried the other side is seeking a reversal of care

Compliance matters. If there are orders, comply unless you have urgent safety grounds and legal advice about the proper pathway.
Avoid child-focused harm. Conduct that entrenches conflict, denigrates the other parent, or prevents safe relationships can be persuasive evidence of harm.
Get support early. If your mental health or trauma is being triggered by the litigation, obtain treatment—courts often look for a parent’s capacity to regulate and parent safely under stress.

If you believe reversal of care is necessary

The Court will usually expect a child-centred transition plan, not just a request for the end result.
Evidence should address: the children’s needs, schooling, supports, the proposed household routine, and how distress will be managed.
If serious allegations are involved, the Court will scrutinise credibility, corroboration and risk and may still make protective orders even if it cannot make every positive factual finding sought.

Need advice about a “reversal of care” risk?

Reversal of care cases move quickly, are evidence-heavy, and can have life-changing outcomes. If you need advice about your prospects, risk management, evidence, or urgent steps, obtain tailored legal advice promptly.

Key cases

Cadriel & Gabbey (No 5) [2023] FedCFamC1F 1028
Gabbey & Cadriel [2024] FedCFamC1A 60

05/03/2026

FAMILY LAW

Family Violence

Pickford & Pickford [2024] FedCFamC1A 249 — why it matters in children’s cases (procedural fairness + family violence findings)
Overview

In Pickford & Pickford the Full Court (Division 1 appellate jurisdiction) allowed a father’s appeal from final parenting orders because the first-instance process miscarried in a way that denied procedural fairness, and because multiple findings that the father perpetrated “family violence” (particularly coercive/controlling behaviour) were not legally or factually open on the evidence. The parenting proceedings were remitted for re-hearing, confined to the question of what “spend time” orders should be made under s 64B(2)(b).

The case is a strong reminder that in parenting litigation:

procedural fairness is not optional, even in “long-running” cases; and

family violence findings must be made with forensic rigour, by reference to the statutory definition, the pleaded/argued limb(s), and evidence capable of supporting the evaluative conclusion.

1) Procedural fairness: “extraneous evidence” and the impossibility of having it both ways

A central appeal error was this sequence:

the father applied (while judgment was reserved) to re-open evidence;

the primary judge dismissed the application; but then

still took the new affidavit material into account, and did so without cross-examination of either party on that fresh material.

The Full Court treated that as a serious error: once evidence is rejected (because the case is not re-opened), it cannot then be used in deciding contested issues. Compounding that, the parties were deprived of the chance to test controversial material in cross-examination. The Court linked this to the classic procedural fairness problem of relying on material not admitted into evidence and found the error was material because it fed into findings that affected the ultimate “spend time” orders.

Practical significance (children’s matters):

If a judge proposes to rely on post-trial material, the court must ensure it is admitted properly (re-opening) and the other side has a genuine opportunity to meet it (including cross-examination where required).

“Efficiency” or the length of proceedings does not justify shortcuts where the result turns on disputed facts relevant to parenting outcomes.

2) Family violence findings: the Court’s insistence on disciplined fact-finding

The appeal is also significant because it pushes back against a drift sometimes seen in parenting litigation: treating high conflict, hard bargaining, or ordinary litigation conduct as “family violence” without a careful statutory fit.

2.1 The statutory task: s 4AB, evidence, and the need for objective evaluation

The Full Court emphasised that allegations of family violence are not proven facts merely because they are made; they require the same forensic approach as any other disputed factual issue, including:

the burden of proof on the party alleging it; and

proof on the balance of probabilities (Evidence Act s 140).

A key recurring error identified was the primary judge treating the mother’s “experience and perception” of conduct as sufficient for coercive/controlling findings, without doing the necessary evaluative work of testing:

what the conduct actually was,

the context (including any innocent explanation),

its intensity and pattern (if relied upon),

and the evidence of impact beyond assertion.

2.2 Intention: often important, not an essential element

The judgments contain careful discussion about intention:

McClelland DCJ (agreeing with the result) accepted that while intention will “very often be decisive” in coercive/controlling assessments, it is not essential to a finding.

Aldridge & Carew JJ likewise stressed that the focus is on behaviour and impact, and the court should not become distracted by searching for intention as a necessary ingredient.

For practitioners, the takeaway is not “intention is irrelevant” — it’s that the legal test is not a criminal mens rea inquiry, but an evaluative characterisation of conduct against s 4AB, proved by evidence.

2.3 A major warning: litigation positions are not “family violence” merely because they cause stress

Some of the most pointed appellate criticism concerned findings that effectively treated the father’s pursuit of ordinary legal rights as family violence—for example, findings based on him:

not consenting to funding/partial property settlement orders sought by the mother,

maintaining an application for parenting outcomes the mother opposed,

pursuing an injunction application,

objecting to counselling initiatives,

raising concerns about the mother’s mental health (despite independent evidence of fragility).

The Full Court was blunt: a litigant does not commit family violence by refusing to capitulate to the other party’s orders. There are statutory tools for truly abusive litigation (including the newer Pt XIB regime), but that is a different inquiry, and this case was not an example of it.

Why this matters in children’s cases:
Family violence findings powerfully shape the “best interests” analysis, risk assessment, and ultimately time arrangements. If findings are made too loosely—by conflating conflict, firmness, or litigation conduct with coercive control—orders may be built on an unstable foundation.

2.4 The Court also questioned whether the family violence “finding exercise” was even necessary here

Another important strand: Austin & Williams JJ observed the parenting dispute at trial was relatively narrow (how many nights per fortnight in school terms, against a backdrop of long-standing interim arrangements). They highlighted authority cautioning against making unnecessary factual findings unless they authentically bear on the orders to be made—especially where the true statutory focus should be on future risk rather than adjudicating every contested historical grievance.

3) Independent Children’s Lawyer: limits on “monitoring” orders after judgment

A further, highly practical point for children’s matters: the primary judge purported to appoint an ICL for 12 months post-judgment to “monitor and assist” with implementation and gave leave for the ICL to relist the proceedings. The Full Court held those orders were ultra vires, “aspirational and unenforceable,” and inconsistent with the judicial function. If enforcement issues arise, parties must bring the appropriate fresh application (e.g., contravention) rather than converting the ICL into an ongoing quasi-case manager.

4) Key takeaways for practice (and for understanding how judges will approach these issues)

Procedural fairness

Evidence not admitted is not available for findings.

If fresh evidence is to be used, the matter must be properly re-opened and procedural steps (including cross-examination if needed) must follow.

Family violence findings

Coercive/control findings require an objective evaluative assessment of conduct in context; a party’s perception alone is not enough (though it may be relevant evidence of impact).

Do not automatically equate conflict or firm litigation conduct with “family violence.”

Pleading/prosecuting the correct limb matters: coercion/control and “fear” operate differently and must be matched to evidence.

Orders and enforceability

Avoid “wish list” orders that are not grounded in power or are not enforceable in practice (the ICL “monitoring” orders are a clear example).

Happy Australia Day!!!
25/01/2025

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Navigating the choppy waters of family law? 🌊 Whether it's about the kiddos, the casa, or calling it quits, we've got yo...
25/09/2023

Navigating the choppy waters of family law? 🌊 Whether it's about the kiddos, the casa, or calling it quits, we've got your back! 🏠💔👨‍👩‍👧‍👦 Legal aid clients in , you're welcome here. 🤝 First 5 to call & mention Facebook get 10% off solicitor fees! 📞✨

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The legal process can seem very daunting, we understand that. Our aim is simple, to give you the expert advice you need ...
09/03/2020

The legal process can seem very daunting, we understand that. Our aim is simple, to give you the expert advice you need but also to make sure you understand the process and feel included from our very first meeting. Call us on 0401 547 417.

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Property and finances after separation Your entitlements with respect to your property settlement are based on the princ...
15/01/2020

Property and finances after separation

Your entitlements with respect to your property settlement are based on the principles of property division set out in the Family Law Act 1975 (Cth) (“the Act”). The Court has a wide discretionary power based on the facts of each case.

To determine a party’s entitlement to an adjustment of their interests in their or their spouse’s property as a result of the breakdown of a relationship the Court first looks at whether or not it is “just and equitable” to make any adjustment to the parties’ interests in the property available for division.

Interestingly as part of the last step the Court considers whether, in all the circumstances of the case, the proposed order is “just and equitable”.

To discuss property division after a breakdown of a relationship call us on 0401 547 417.

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25/12/2019

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