Best interests of the Child

The Court’s focus is on the best interests of the child or children. The legislation guides the Court on what it should consider when making a parenting order.

From 6 May 2024, if the child’s or children’s parents are, or were married to each other, the following information applies.

The objects of the legislation are:

1. to ensure that the best interests of children are met, including by ensuring their safety; and
2. to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

The court must consider the following matters when determining what is in a child’s best interests:

• what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
• the child; and
• each person who has care of the child (whether or not a person has parental responsibility for the child);
• 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 proposed to have parental responsibility for the child to provide for the 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 people who are significant to the child, where it is safe to do so;
• anything else that is relevant to the particular circumstances of the child.

In considering the above matters, the court must include consideration of:

• any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
• any family violence order that applies or has applied to the child or a member of the child’s family.

If the child is an Aboriginal or Torres Strait Islander child, the court must also consider the following matters:

• the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
• to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
• to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
• to develop a positive appreciation of that culture; and
• the likely impact any proposed parenting order will have on that right.

These considerations apply to all parenting orders, including but not limited to parental responsibility orders, orders about where and with whom a child will live, and orders concerning the time the child is to spend with the other parent or any other significant person in the child’s life.

If the child’s or children’s parents have not ever been married to each other the following information still applies.

The main considerations of the court are:

• protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and
• the benefit of the child having a meaningful relationship with both parents.

The need to protect the child is considered more important than benefit of a meaningful relationship with both parents.

There are also other things the Court will consider:

• the children's views, balanced against how much they understand and how mature they are. Children do not have to express their views if they don’t want to
• the kind of relationship children have with their parents and other significant people, including grandparents, brothers and sisters, and other relatives
• the extent to which each parent has been involved with decisions about major long-term issues about the children
• how much time each parent has spent with and communicated with the children
• whether each parent has supported the children financially or failed to do so, for example paying child support on time
• the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare
• the practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent (this includes spending time with and/or communicating with each other)
• how much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs
• the maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent
• the right of children who are Aboriginal or Torres Strait Islander to enjoy their culture (including with others of that culture)
• each parent’s attitude to the responsibilities of being a parent and towards their children in general
• any family violence involving the children or a member of their family
• any other considerations the court thinks are important.

Children's views

Children do not share their views with the Court in person. The Court can appoint a Family Consultant or Independent Children's Lawyer to learn about the children's views.

A Family Consultant can interview children when preparing a family report. Family reports are given to Judicial Officers to help them make their decision.

An Independent Children’s Lawyer is a legal representative who represents the children's interests.

Equal shared parental responsibility

From 6 May 2024, this information no longer applies in cases where the parents of a child or children are, or were, married to each other.

The court has to presume that giving both parents equal shared parental responsibility is in the best interests of the child. Visit the parental responsibility page for information on this term - it does not refer to both parents spending an equal amount of time with the child. The Court considers the time spent with a child as a separate issue to parental responsibility.

The presumption applies unless it would not be appropriate, and the parents can provide evidence to the court that it is not in the best interests of the child that the parents have equal shared parental responsibility.

Parenting time

From 6 May 2024, this information no longer applies in cases where the parents of a child or children are, or were, married to each other.

If equal shared parental responsibility is presumed, the court must consider whether it is reasonably practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent.

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. It includes things such as a parent spending time with children on significant days such as birthdays or at school concerts.

Reasonably Practicable

What is “Reasonably Practicable” depends upon your particular circumstances. The court can take into account factors such as:

• How far apart the parents live from one another;
  • The parents’ capacity to implement an equal or substantial and significant time arrangement
  • The parents’ capacity to communicate with each other and resolve difficulties arising from an equal or substantial and significant time arrangement
• The impact on the child; and
• Any other matters that the court thinks relevant.

More information

You may find the following resources useful:

• The self-represented litigants guide for children’s cases.
• The Parenting Orders – what you need to know document
• The parental responsibility page.

Last updated: 16-Apr-2024

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