How a court determines what is in a child's best interests

When a court is making a parenting order, the Family Law Act 1975 requires it to regard the best interests of the child as the most important consideration. Parents are encouraged to use this principle when making parenting plans.

1. Benefit of the child having a meaningful relationship with both parents; and
2. The need to protect the child from harm, being subjected to or exposed to abuse, neglect or family violence.

There are also other considerations which the Court must take into account in deciding what is in the best interests of a child. These additional considerations are:

• Views expressed by a child which the Court will give weight after taking notice of the child’s age and maturity;
• The child’s relationship with his parents, grandparents, relatives and other relevant persons;
• The demonstrated responsibilities of parenthood by the child’s parents;
• Probable effect to the child of any changes in his circumstances, including separation from his parents, siblings and relatives;
• The capacity of the parents or other carers to provide for the needs of the child, including his emotional and intellectual needs;
• The willingness of each parent to encourage and facilitate a close and continuing relationship between the child and the other parent;
• The expenses and difficulty of having a child spend time with each parent and its effect on having contact on a regular basis;
• The maturity, sex, lifestyle and background of the child and his parents;
• The child’s right to enjoy his Aboriginal or Torres Strait Islander culture and the effect of any order upon the enjoyment of such right;
• Whether there is family violence or abuse that involves the child or a member of the family;
• Whether it would be preferable to make an order that avoids Court proceedings.

A court is required to apply the presumption that it is in the best interest of the child for both his parents to exercise equal shared parental responsibility in decisions that pertain to important and long-term issues such as the child’s education, religion and health - care.

However, this presumption does not apply if there is family violence or abuse. If the Court orders that the parents will have equal shared parental responsibility for their child, the next step is to consider whether equal time would be in the child’s best interests.

If the Court deems that equal time is inappropriate or impractical it will then consider allowing each parent to have substantial and significant time spent with the child which will still depend on the best interest rule.