A guide to the ‘best interests of the child’ in family law

Key insights

• The child’s best interests are the highest priority in all parenting decisions under Australian law
• Courts focus on safety first, especially where there is any risk of family violence or harm
• There are six key factors under section 60CC used to assess what’s best for each child
• A child’s views may be considered, depending on their age, maturity and circumstances
• Courts look closely at each parent’s capacity to meet the child’s emotional, psychological and developmental needs
• Maintaining safe, meaningful relationships with both parents is encouraged where appropriate
• The Court assesses the quality of evidence, not just the number of factors, when making decisions
• Independent professionals, like family consultants and ICLs, may be involved to support decision-making
• Even outside Court, parents are expected to make decisions that prioritise the child’s well-being and stability
• Getting early legal advice can help you align parenting arrangements with what the Court will consider reasonable

 

In Australian family law, every parenting decision comes back to one central question – what’s in the best interests of the child?

This principle sits at the heart of the Family Law Act 1975 and guides how courts determine parenting arrangements. Rather than focusing on what parents may want, the law requires careful consideration of factors like a child’s safety, their needs, their relationships and each parent’s ability to care for them.

But what does this actually mean in practice? And how might it shape the outcome of your parenting arrangements? 

 

The legal foundation of the child’s best interests

Under the Family Law Act 1975 (Cth), the best interests of the child is the paramount consideration in all parenting cases. This means that whenever a court in Australia considers any matters that concern a child, whether it’s parenting orders or agreements, the welfare, safety and developmental needs of that child are given the most weight. The best interests of the child outweigh everything else, including the wishes or convenience of either parent.

 

The legal test

Section 60CC sets out the main legal test that the Family Court uses to decide what’s in any child’s best interests. It includes six key factors that the Court must consider, including:

1. The arrangements that promote the child’s safety, especially any history of or exposure to family violence or abuse.
2. The child’s views, taking into account the child’s age and maturity level.
3. The child’s developmental, psychological, emotional and cultural needs.
4. Each proposed carer’s ability and capacity to meet all the needs of the child.
5. The benefit to the child of having a meaningful relationship with parents and other people in their life, where it is safe to do so.
6. And the catch-all of “anything else that is relevant to this particular child and their circumstances”.

For Aboriginal and Torres Strait Islander children, the Family Law Act adds an additional requirement to consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture.

Parents can enter into private parenting arrangements without a Court applying the section 60CC ‘best interests’ test, and those arrangements don’t have to be reviewed or approved by the Court. However, Australian law still expects parents to focus on the child’s best interest when making those agreements. 

Where parents can’t agree on parenting arrangements privately and apply to the Court for parenting orders, the Court will then base its decision on the required factors. When deciding every element of the order – how much time they spend with each parent or where the child will live, for example – their decision will be designed to create an outcome that will best promote the child’s overall safety, wellbeing and development. 

 

International influences

Australia’s approach to parenting and family law doesn’t exist in isolation and is strongly influenced by the United Nations Convention on the Rights of the Child (UNCRC), which Australia signed in 1990. Article 3 of the UNCRC sets out its own best interests standard, saying that in all actions concerning children, ‘the best interests of the child shall be the primary consideration.’ Article 12 of the UNCRC also gives children the right to express their own views about any matters that impact them.

These ideas flow directly into Australia’s own child-centred legal framework and are clearly reflected in the Family Law Act. They are also central to state and territory child protection laws, where the best interests of the child is the guiding decision-making principle.

 

The considerations of section 60CC

Prior to the Family Act amendments in May 2024, there were some “best interests” factors actually listed in the Act as ‘primary considerations’, but since that time, the list has been simplified to the six factors set out above, with some explanations about the consideration of family violence, abuse or neglect. But understanding these ideas in greater detail is still highly relevant to understanding the ‘best interests of the child’ concept.

 

The need to protect the child from harm

When there’s a genuine risk of harm, the Court will limit or structure a parent’s involvement. This could be by setting supervised visitation time, or not allowing any time at all, depending on the circumstances. At the end of the day, safety outranks contact.

Despite the removal of the concept of “primary” and “additional” considerations from the “best interests” factors, the obligation to make orders that promote the safety of the child remains the first of the listed best interests factors.

In practice, however, when it’s safe, the Court will try to craft parenting orders that allow children to maintain strong relationships with both parents, which usually includes regular time spent together and the ability to regularly communicate with each other.

 

The benefit of a relationship with both parents

There can be a tendency to prioritise ongoing parental involvement because research shows that children generally do better – emotionally, socially and developmentally – when they can maintain safe, stable relationships with both their parents.

The previous requirement of having a ‘meaningful’ relationship meant more than just time that’s set out in a shared calendar. It actually meant an ongoing, positive and secure relationship where the parent is actively involved in their child’s daily life – including caring for them. Arguably, this remains the case, notwithstanding the change in wording.

Even though this was once considered a ‘primary’ consideration and remains important, it’s not absolute. It must always be balanced with the other considerations – particularly the need to promote the safety of the child and to protect the child from being subjected to, or exposed to, family violence, abuse, neglect or other harm. 

 

The child’s views

Australian law sees children as having rights themselves, and it also recognises that they often have valuable insight into what will feel safe and workable for them. So one key factor under section 60CC is any views expressed by the child.

The weight given to those views does depend on a few things, such as their age, maturity and the context in which those views were formed. For example, the Court might look to see if there’s any evidence of pressure or coaching by a parent, or even fear of a parent that is impacting what the child says or thinks.

Despite what we might see in movies or media, in practice, the Court doesn’t typically ask a child to choose between their parents. In fact, children are not, and should not be put under any obligation to express any views, if they do not wish to do so. Instead, the goal is to determine the child’s views more indirectly, usually through an Independent Children’s Lawyer (ICL) or other professional input. They then look at these views alongside the other best-interest factors, including whether the home is safe and whether the parent has the capacity to meet the child’s needs.

When a child is older and can present clear, reasoned preferences, the Court will generally give those views significant weight as long as they’re also consistent with the child’s overall welfare and safety.

 

The needs of the child 

When thinking about parenting arrangements and the ‘best interests of the child’, the Court will also look closely at the specific needs of the child, including the developmental, psychological, emotional and cultural needs, together with the child’s relationships with each parent, their siblings and other important people in their lives, for example, grandparents or step-parents. 

The Court isn’t just seeing whether or not there is a relationship in place. It’s also looking at the needs of the child in respect to their relationships, being the quality, warmth and stability that those relationships provide, who has provided day-to-day care, who the child turns to for help and comfort and who has supported their education, health and even social development. 

There’s a benefit to children in being able to maintain safe relationships with these important people in their lives, and the Court recognises that these relationships can be a strong protection for children overall.

 

The capacity of each proposed carer of the child

Another factor the Court considers is the capacity of each proposed carer to meet the child’s needs. This isn’t simply the ability to provide food and housing. It also importantly considers the child’s developmental, psychological, emotional and cultural needs.

The Court will look at whether a potential carer can provide consistent routines, is willing to support the child’s relationship with other important people and if they’re willing and able to seek help, for example from a doctor or other support services, when the child or they themselves need it. 

Amendments to the Family Law Act also make it clear that just because a parent needs support services – for example, if they’ve experienced family violence, trauma, or have a disability – this isn’t automatically treated as a lack of capacity. 

 

The previous requirement to consider the impact of changes

Another factor the Court was previously required to  look at was the likely impact of any proposed changes to a child’s living or care arrangements. Shifts like this, whether a move, a school change, or just transferring between mum and dad’s houses more frequently, were considered to potentially impact a child’s sense of security and continuity. 

It is possible that, despite the removal of this specific factor, the Court will continue to weigh the potential benefits of a change against the disruption that it might cause when assessing the needs of the child and seeing what’s in the child’s best interests.

 

Cultural factors

For Aboriginal and Torres Strait Islander children, the Family Law Act also requires that the Court take into account the child’s right to enjoy and maintain contact with their family, community, culture, language and Country. This reflects the understanding that in Australia, cultural identity and strong community ties are central to the well-being of Aboriginal and Torres Strait Islander children and must be protected.

 

How courts apply the ‘child’s best interests’ test

When separated parents can’t agree on parenting arrangements, they can apply to the Court for parenting orders. It’s then that the Court will consider what’s in the child’s best interests, and weigh the section 60CC factors in each case. 

The Court doesn’t just count up the factors on each side. It evaluates the quality of the evidence, and typically gives greater weight to safety and risk-related considerations.

 

Evidence used to determine best interests

Family reports

Family reports are independent assessments prepared by a court-appointed family consultant under section 62G of the Family Law Act. The consultant interviews the parents, the child and others, such as other carers or step-parents. The consultant will often also observe the child interacting with each of their parents.

The consultant then provides the Court with a family report that gives insight into the child’s relationships, needs and views and addresses any other issues that arise, such as safety concerns. The consultant will also make recommendations about the arrangements they believe would be in the child’s best interests. 

The Court often gives these reports substantial weight, but it will still come to a decision based on the evidence as a whole without necessary reliance on any one particular piece of evidence.

 

Independent children’s lawyer (“ICL”)

Sometimes, typically in more complex or high-risk matters, the Court may appoint an ICL to represent the child’s best interests. An ICL doesn’t act on the child’s instructions. Instead, their role is to gather and test evidence, which can include family reports or expert assessments, and make sure that the child’s views are put before the Court. Since the changes to the Family Law Act in May 2024, the ICL is now required to meet with the child if they are over 5 years of age, and to give the child an opportunity to express their views in relation to the proceedings.

An ICL also makes submissions about what orders would best promote the child’s safety and welfare. They can support or oppose a parent’s proposal, or suggest alternative arrangements, but the final decision always remains with the Court.

 

Expert witnesses

The Family Court can also rely on expert witnesses such as psychologists, psychiatrists, or other specialists appointed expressly to provide reports and testimony that help them determine what’s in the child’s best interests. These reports might cover things like the child’s mental health needs, the impact of family violence or a parent’s capacity to care for the child. 

Expert witnesses are independent, and their primary duty is to the Court, and not to a parent or even the child. Their evidence is also weighed alongside all the other evidence given and applied to the best interests test.

 

How parents can demonstrate decisions are in the child’s best interests

Even if you never go to court, there are practical steps you can take every day to show that your parenting decisions are guided by your child’s best interests:

• Documentation and communication – Keep clear, respectful written records of any discussions or decisions about the child. This shows you’re informed, cooperative and focused on their needs first and foremost.
• Family dispute resolution – Attending mediation or another type of dispute resolution and genuinely trying to reach an agreement shows the Court that you’re willing to work to resolve conflict in a child-centred way.
• Supporting the child’s relationship with the other parent – When it’s safe, encourage time and positive contact with the other parent. This shows that you are putting the child’s emotional security above adult disputes.

 

Where can I seek help?

If you’re unsure about your options or worried that your current arrangements aren’t working or are unsafe for your child, it’s important to get tailored legal advice early rather than waiting for a dispute to escalate. Australian Family Lawyers can explain how the best-interests test applies to your situation, help you negotiate parenting arrangements or consent orders, and represent you in Family Court if court proceedings become necessary.

If you’re under any threat of family violence or feel at risk, please contact:

• 000 for Police or Ambulance if you’re in immediate danger
• 1800RESPECT (1800 737 732) – available 24/7 or
• Lifeline at 13 11 14

 

If you want to learn more about your legal rights and responsibilities when it comes to relocating with a child, get in touch with our helpful Australian Family Lawyers. We’re ready to offer support, information and guidance today.

Call the team at 1300 470 243 or request a call back via the form below.

 

Frequently asked questions

 

How does the Family Court decide what’s in a child’s best interests?

The Family Court looks at all the evidence in light of the ‘best interests of the child’ factors in the Family Law Act. These include things like the child’s safety, needs, relationships and what views they  themselves express. It then makes parenting orders that it believes will best promote the child’s overall welfare and so be in the child’s best interests.

 

Does the court always give equal time to both parents?

No. This is a common idea, but there’s actually no presumption that children will spend equal time with each parent. Since May 2024, even the presumption of equal shared parental responsibility has been removed. Instead, the Court today focuses on what arrangements for both time with each parent and the allocation of parental responsibility are genuinely in the child’s best interests.

 

Can a child choose which parent to live with?

The Family Court doesn’t ask children who they want to live with, particularly when they’re young. Instead, the Court will try to determine their views, and then consider those views as one factor, giving more weight to those views as they get older and more mature. But the final decision is always based on the broader best-interests test.

 

How is family violence treated under the best-interests test?

In Australian Family Law, allegations or findings of family violence, abuse or neglect are central to the best-interests analysis, and the need to protect the child (and their carers) from physical or psychological harm will override other factors such as maintaining contact with a violent parent.