Best interests of children

The Family Court decides what orders to make for a child by focusing on ensuring the best interests of the child are met, including by ensuring their safety.

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.

If you and your ex-partner are going through a separation and working out arrangements for your child, it is important to focus on what arrangements will be in their best interests. You and your ex-partner can put in place arrangements that work best for your child and your family.

There are not set parenting arrangements for a child after separation because every child and family situation are unique.

How does the court work out what is in the best interests of a child?

Currently, the law requires the court to take into account "primary" and "additional" considerations when deciding what arrangements are in the best interests of a child.

Changes to the law

From 6 May 2024, there will be changes to the law about what the court is required to take into account when deciding what arrangements are in the best interests of a child. These changes will apply only in cases where parents married.

The court will take six (6) considerations into account when deciding what arrangements are in the best interests of a child. There will be an extra consideration for Aboriginal or Torres Strait Islander children.

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.

Current best interest considerations

The primary considerations are:

the need to protect the child from physical or psychological harm, abuse, neglect or family violence - including being exposed to abuse, neglect or family violence (for example, a child seeing or hearing family violence), and
the benefit to the child of having a meaningful relationship with both of their parents.

While both primary considerations are important, the most important consideration, above anything else, is protecting a child's safety.

The additional considerations are:

any views expressed by the child, taking into account their maturity and level of understanding,
the relationship the child has with each parent and other people, including grandparents, siblings and other relatives,
whether each parent has participated in making long term decisions about the child, and has spent with and communicated with the child,
the likely effect of changing the child's current situation, including separation from their parents, siblings or other important people in their lives,
any practical issues, including the cost of the child spending time with and communicating with each parent and whether this will affect their ability to have a relationship with that parent,
whether the child's parents and others, including grandparents or other relatives, can provide for the child's needs, including emotional and intellectual needs,
the maturity, sex, lifestyle and background (including culture and traditions) of the child and their parents,
whether it is better to make an order which means the parents are less likely to ask for more court orders in the future,
for Aboriginal and Torres Strait Islander children, their right to enjoy their culture including enjoying it with other people who share that culture (the court must also consider the likely impact any proposed order may have on that right), and
anything else about the child the court thinks is important to consider.

What are the new best interest considerations?

From 6 May 2024, in cases where parents were married, the best interest considerations will be:

what arrangements will promote the safety of the child and each person who cares for the child (including safety from family violence, abuse, neglect, or other harm),
any views expressed by the child,
the developmental, psychological, emotional and cultural needs of the child,
the capacity of each person who has (or is asking to have) parental responsibility for the child to provide for their child's developmental, psychological, emotional and cultural needs,
the benefit to the child of being able to have a relationship with the child's parents, and other significant people in their life, where it is safe to do so, and
anything else that is important to the individual situation of the child.

For an Aboriginal or Torres Strait Island child, the court must also consider their right to enjoy their culture. This includes having the opportunity to connect with and maintain their connection with members of their family and their community, culture, country and language. The court must also consider the likely impact that any proposed order may have on that right.

How does the court make decisions if there is more than one child?

If there is more than one child, the court will look at what is best for each individual child, as well as looking at how arrangements would impact on other children. What is in one child's best interests might not be the same for another child - even from the same family.