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?

Until recently, the law required the court to take into account "primary" and "additional" considerations when deciding what arrangements were in the best interests of a child. This applied to all family law cases, including where the parents were married and also where the parents were in a de facto relationship.

Changes to the law

There have recently been 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.

The changes require the court to take six (6) considerations into account when deciding what arrangements are in the best interests of a child. There is also extra considerations for Aboriginal or Torres Strait Islander children.

What are the best interest considerations?

The best interest considerations are:

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.