The Family Court doesn’t use the phrase ‘unfit parent’ in any formal legal sense — but the concept is very much alive in how it assesses parenting arrangements. The court’s only job is to act in the best interests of the child, and that means scrutinising both parents’ capacity to care for them safely and consistently.
What the court actually looks at
Under section 60CC of the Family Law Act, the court weighs up a range of factors. The two primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. Where those two things conflict, protecting the child from harm takes priority.
Beyond those primary factors, the court may consider:
• Any history of family violence, abuse, or neglect — including emotional and psychological harm
• A parent’s mental health, substance use, or other issues that affect their ability to provide consistent, safe care
• Whether a parent has been meeting their practical obligations — school runs, medical appointments, stable housing
• The child’s own views, depending on their age and maturity
• The willingness of each parent to support the child’s relationship with the other parent
How does the court gather this information?
In contested cases, the court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s interests. A family report — prepared by a social worker or psychologist — may also be ordered, involving interviews with both parents and the children. Child protection reports, police records, and medical evidence can all be put before the court.
Questions to consider
• Are there any child protection reports, AVO applications, or police records already on file that the court may take into account?
• Has the other parent’s behaviour changed recently, or are there new concerns that weren’t present at the time of the original orders?
• Would an Independent Children’s Lawyer be appropriate in this matter? How would that process work, and what does it involve?