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 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 about 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

From 6 May 2024 there will be changes to the law about how the court decides what arrangements are in the best interests of a child.

The term "best interests of the child" has a special meaning in family law. The law requires the court to take into account a number of considerations when deciding what is in a child's best interests. From 6 May 2024 there will be changes to what the court is required to take into account. These changes will apply only 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. 

For more information about the current best interest considerations, and what the new best interest considerations will be, 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

Currently there is a legal presumption in family law that it is 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. The legal presumption does not apply 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. 

From 6 May 2024, in cases where parents were married, this legal presumption will no longer apply. It will continue to apply in cases where parents were in a de facto relationship. However, it is expected the 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. 

Currently, the law says that if the court decides it is in a child's best interests for their parents to have equal shared parental responsibility, 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. 

From 6 May 2024, in cases where parents were married, the legal presumption about equal shared parental responsibility will no longer apply. This means that the court will no longer be 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 and significant time, if it decides this would be in the best interests of the child. 

In all cases, regardless of whether parents were married or in a de facto relationship, the court will only order shared care if it decides this is in the best interests of the child.

More information

Legal Aid WA
Attorney General's Department
Family Court of WA

 

Reviewed: 19 February 2024

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.