How the court decides
When deciding what orders to make about a child, the Family Court focuses on ensuring that the best interests of the child are met, including by ensuring their safety.
When you apply to the Family Court for orders about a child, you are starting a court case and asking the court to decide on the care arrangements for your child. A case is usually started when parents cannot agree on their child's care arrangements or if there is an urgent situation (for example, where the safety of a child is at risk).
This webpage has information about how the court makes decisions in cases about a child and the common issues that the court makes orders about.
What can the Family Court make orders about?
The Family Court can make orders about any matter in dispute about a child.
Some common issues that the court can make orders on about a child include:
- who a child will live with,
- how much time a child will spend with each parent and other important people in their lives (for example, grandparents),
- who can make decisions about major long-term issues for a child (for example, where they go to school and medical care),
- if a parent is allowed to change where a child usually lives (for example, moving within Western Australia, to another state or overseas),
- what school a child will go to,
- medical care,
- travelling with a child (for example, interstate or overseas).
Changes to the law
There have recently been changes to the law about how the court decides what arrangements are in the best interests of a child. Currently these changes only apply in cases where parents were married. It is expected that these changes will also apply in cases where parents were in a de facto relationship in the near future. Ensuring the safety of a child will continue to be an important consideration in all cases.
The changes require the court to take six (6) considerations into account when deciding what arrangements are in the best interests of a child. There will also be an additional consideration for Aboriginal and Torres Strait Islander children.
For more information about the best interest considerations for cases where parents were married or in a de facto relationship, see the Legal Aid WA webpage Best interests of children.
Are there standard orders about children?
There are no standard orders about children. This is because every child and family are unique and have different needs.
Even within one family, different children may have different needs. The court will focus on the best interests of each child and may order different arrangements for different children. For example, different arrangements may be made for a younger child than an older child.
Parental responsibility
There has recently been changes to the law about parental responsibility. There was previously a legal presumption in all cases that it was in the best interests of a child for their parents to share parental responsibility. A legal presumption means the law presumes that this is best for a child in most cases.
This legal presumption has been removed in cases where the parents of a child were married. It will continue to apply in cases where parents were in a de facto relationship, except in cases where there has been family violence or abuse or the court decides it would not be in the best interests of the child. It is expected the legal presumption change will also apply in cases where parents were in a de facto relationship in the near future.
For more information see the Legal Aid WA webpage Parental responsibility.
"Shared care" and "Significant and substantial time"
Shared care (equal time) is an arrangement the court may order, if it decides this is in the best interests of a child.
There has recently been changes to the law in cases where parents were married and the court is no longer required to consider making an order for shared care or substantial and significant time. However, the court can still make an order for shared care or substantial time, if it decides this would be in the best interests of the child.
In cases where the parents were in a de facto relationship, the legal presumption is that it is in a child's best interests for their parents to have equal shared parental responsibility in most cases. If the legal presumption applies, the court must consider making an order for shared care.
The court must consider the following factors when deciding whether to make an order for shared care:
- whether it would be in the best interests of the child, and
- whether it would be reasonably practicable (the court will look at practical things such as parents work hours, how far apart they live, how well they can talk to each other and work out problems).
If the court doesn't order shared care, it must consider making an order for the child to spend substantial and significant time with the parent they don't live with. Substantial and significant time means time both on weekends and mid-week.
In all cases, regardless of whether parents were married or in a de facto relationship, the court will only order shared care or substantial time if it decides this is in the best interests of the child.
More information
Legal Aid WA
Australian Attorney General's Department
- Fact sheet for parents - Family Law Amendment Act 2023
- Fact sheet for parents - Family Law Amendment (Information Sharing) Act 2023
Family Court of WA
Reviewed: 20 May 2024