Legal Matters: Parenting Arrangements & the Children's Best Interests Test
It is the single most argued point in every family law dispute involving children: whose interests come first when parents separate. Andrew Bell and Colin Balewski open Episode 25 of Legal Matters by confirming that the child’s best interests, not either parent’s sense of fairness or entitlement, must drive every parenting decision, and explain why the once-standard assumption of 50/50 shared custody no longer applies as a starting point in Queensland and across Australia.
The episode continues the Legal Matters family law series, moving from property settlement and de facto relationships into parenting arrangements. A busy talkback segment follows, with five callers raising a broad spread of unrelated questions, from census penalties and will storage to switching lawyers mid-matter, an overseas class action notice, and a missing advance health directive.
Related guides
- De facto relationships and the two-year threshold – /faq/family/de-facto-relationships-queensland/
- Family law fundamentals for married and de facto couples – /legal-matters/drones-rental-cars-parenting-relocation-legal-questions-18-august-2026/
- Wills and estates basics – /legal-matters/drones-rental-cars-parenting-relocation-legal-questions-18-august-2026/
Key Topics
- The paramount principle – in any parenting dispute, the child’s best interests override either parent’s personal sense of what they deserve.
- The end of the 50/50 presumption – the federal Labor government removed the presumption of equal shared parental responsibility, and the associated assumption of equal time, in 2024.
- Parental responsibility versus time spent – major decision-making power is legally separate from the number of nights a child spends with each parent.
- Independent children’s lawyers and parenting reports – how courts bring in independent voices, including child psychologists, when parents cannot agree.
- Census compliance – penalties for non-completion and for knowingly providing false information.
- Will review and storage – no legal expiry date, but a recommended three-year review cycle and the importance of the original document for probate.
- Switching lawyers and overseas class actions – practical consumer questions on legal representation and cross-border litigation.
- Advance health directives – why a copy is not enough, and where the original needs to sit.
Listener FAQ Highlighted In This Episode
What is the best interests of the child test? It is the paramount factor courts must apply in every parenting decision, covering safety, the child’s own views, and their developmental and emotional needs. Read our full FAQ on the best interests test .
Is 50/50 custody still the default in Australia? No, that presumption was rolled back in 2024. Read our FAQ on the end of the 50/50 custody presumption .
Can a parent with less time still make major decisions for their child? Yes, parental responsibility for schooling, medical care, religion and travel is legally distinct from time spent. Read our FAQ on parental responsibility versus time with children .
How often should I review my will, and where should the original be kept? No mandatory review period exists, but a three-year cycle is recommended, and the original document matters most for probate. Read our FAQ on will reviews, triggers and storage .
Can I switch lawyers halfway through my divorce? Yes, at any time, provided outstanding fees are settled. Read our FAQ on changing lawyers mid-matter .
Is a copy of my advance health directive enough if I can’t speak for myself? No, medical staff are not bound to follow a copy. Read our FAQ on advance health directive originals versus copies .
Listen to the full discussion above.
Key Takeaways
- Argue from the child’s perspective, not your own. Courts favour parents who can explain why their proposal genuinely serves the child.
- There is no default 50/50 starting point anymore. Every arrangement is assessed on safety, the child’s views, and developmental needs.
- Parental responsibility and time spent are separate. A minority-time parent can still share equally in major decisions.
- Review your will every three years, and keep the original document secure, since a copy is not sufficient for probate.
- You can change lawyers at any time, in any matter, once outstanding fees are settled.
- Lodge your advance health directive original with Queensland Health. A copy alone is not legally binding on medical staff.
Next week: the family law series continues with the mechanics of parenting agreements, independent children’s lawyers, and parenting reports in practice.
Annotated Transcript
Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This programme provides general legal information only. It is not personal legal advice, everyone’s situation is different, so please seek independent advice for your own circumstances.
Segment – The Best Interests Principle
⚖️ Topic: Why the child’s interests, not the parents’, must drive every decision Relevant law: Family Law Act 1975 (Cth)
Colin: This morning’s topic is what parents need to take home from the point of view of family law. Today we’re moving into children and parenting, and rather than going through specific court decisions, we want to give listeners the practical considerations to actually take home.
Andrew: Parenting affects everyone who separates who has children, whether or not they ever go near a courtroom. There is one single most important factor that needs to be taken into account, and that’s the interests of the child. In any decision around parenting, the number one deciding factor the courts are supposed to consider is what’s in the best interests of the child, those interests come first. It might sound obvious, but it’s difficult to hold on to in the middle of a separation, because everything feels personal.
📎 See also: Best Interests of the Child Test | De Facto Relationships in Queensland
Caller 1 – George | Census Non-Completion Penalties
⚖️ Topic: Fines for not completing the census, and for providing false information Relevant law: Census and Statistics Act 1905 (Cth)
George: With the census coming up, I’ve heard a lot of people saying they don’t want to fill out the forms. Can you actually be fined if you don’t?
Andrew: Yes, you can. It’s a Commonwealth offence, and you can be fined up to $364 a day, according to the Bureau of Statistics. If no one is home on the date, a declaration would be filed to say there was no one there, but knowingly providing false or misleading statements is also a crime, and it can result in a fine of up to $3,000.
📎 See also: Legal Myths Busted
Caller 2 – Nadine | Will Review and Storage
⚖️ Topic: How often a will needs reviewing, and how the original is stored Relevant law: Succession Act 1981 (Qld)
Nadine: How often is a will required by law to be officially reviewed, even if no important change of circumstances has occurred for a few years?
Andrew: A will, once properly executed, never technically needs to be changed. However, people’s circumstances change all the time. Our recommendation to clients is that they review that everything in their will is current at least every three years. There’s no mandatory time frame, you could write a will at 18 and it would still be valid at 100.
Nadine: How is the will stored by the lawyer, given everyone’s concerns about privacy?
Andrew: Unlike virtually every other document, the physical copy of the will is the most important copy that needs to be retained, because it needs to be sent to the Supreme Court for probate. We scan wills in case something happens, stored in an encrypted, secure cloud, but we also keep the physical copy in a safe, with a chain of custody for anyone signing it in and out.
📎 See also: Will Review Triggers, Frequency & Original Storage (QLD) | Wills and Estates
Segment – Parenting Arrangements After the 50/50 Rollback
⚖️ Topic: The removal of the equal shared parental responsibility presumption Relevant law: Family Law Act 1975 (Cth)
Andrew: Every decision, whether it’s where the children live, how much time each parent gets, or how school and medical decisions are made, should all start from the position of what’s best for the child. There was a perception of uneven decisions around where children stayed after separation, so the law changed to say the default position is both parents get 50% custody. That was rolled back by the federal government in 2024, so there’s now no presumption starting at 50/50 custody. The court will look at the safety of the child, the child’s own views, their developmental and emotional needs, and the parents’ capacity to meet those needs.
Colin: So parents shouldn’t walk in assuming half the time is the best place to start.
Andrew: That’s right, and it cuts both ways, some arrangements will still land at 50%, and if that’s what the parents want and it’s deemed appropriate, that’s not a problem. Not everything has to go through the court, you could come up with a parenting agreement and ask for it to be lodged with the court so it has the power of a court order.
📎 See also: 50/50 Custody Presumption in Australia
Segment – Independent Children’s Lawyers and Parenting Reports
⚖️ Topic: How the court investigates disputed parenting matters Relevant law: Family Law Act 1975 (Cth)
Andrew: If you’re applying to the court, they may appoint an independent children’s lawyer, who represents the children’s interests rather than either parent. Parents put out their position in an affidavit, and the court can order parenting reports, where an independent person interviews everyone involved, including the children. Child psychologists can be involved. Older children, particularly teenagers, will often have their preference given very strong weight, as long as it’s safe and there’s no undue influence. A five-year-old’s stated preference carries far less weight.
📎 See also: Best Interests of the Child Test
Caller 3 – Laura | Changing Lawyers Mid-Matter
⚖️ Topic: Switching legal representation partway through a matter
Laura: I’ve just completed my testamentary trust and will, and I was recommended to a divorce lawyer I didn’t feel comfortable with. Can I just change firms?
Andrew: Absolutely, you can change your legal representation at any time. I’d suggest talking with your current lawyer first, but you’re free to move at any point in any proceeding. You would have signed a client services agreement, which sets out the terms, and typically you need to make sure you’ve paid all your bills before you switch.
📎 See also: Changing Lawyers Mid-Matter in Queensland
Caller 4 – Len | Overseas Class Action Notices
⚖️ Topic: Opting in versus opting out of a class action
Len: I received an email about a class action against Amazon in the United States, saying I’ve been included as an Australian customer. It wants me to opt out, but it’s complicated.
Andrew: Typically you have to establish your standing as American as part of the requirements for these US class actions, so if you have no tie-in except being a customer, often you’re not eligible. In Australia, you typically have to opt in, they’ll write to you and say you believe you’re in the class, with a deadline to opt in. In America, sometimes it’s the opposite, they’ll assume you’re in unless you opt out, and that can extinguish your rights to sue separately later.
Caller 5 – John | Advance Health Directive Originals
⚖️ Topic: Whether a copy of an advance health directive is legally binding Relevant law: Powers of Attorney Act 1998 (Qld)
John: I can’t find my original advance health directive, just a certified copy. Is that good enough?
Andrew: No, it wouldn’t be. Normally the original is filed with Queensland Health, sent there by your lawyers on your instruction. If you don’t have it, my suspicion would be the original is on file there. A copy wouldn’t be legally binding, medical staff may choose to follow it, but they wouldn’t be bound to, and you couldn’t sue them for not following it if there’s nothing on file.
📎 See also: Advance Health Directive Originals vs Copies | Enduring Power of Attorney
Announcer: You’ve been listening to Legal Matters, proudly brought to you by our trusted sponsor, Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. A copy of this and past programmes, and all relevant resources, will be available for you to replay or download at bellsenior.com.au and 4crb.com.
This transcript provides general legal information only, it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.