Separating when you and your ex have children inevitably involves challenging decisions to be made about how those children should be cared for going forward.

Here we have another person involved so the factors to take into account about future parenting matters are quite different from those involved in property.

Specifically, when the Court is asked to make or change parenting orders, it must consider the “best interests of the child”. It must regard those best interests are “paramount” in making such an order.

In this article we’ll run through the times the best interests of the child are relevant and the factors the Court must take into account.

When Will the Court Be Concerned with the Best Interests of the Child?

The Family Law Act requires the Court to treat the best interests of the child as the “paramount” consideration when deciding whether to make a “parenting order”.

So what is a parenting order?

A parenting order is a Court order that deals with one or more of these topics:

1. the person/s with whom a child is to live;
2. the time a child is to spend with someone;
3. allocation of parental responsibility for a child and the way in which that responsibility should be exercised;
4. the communication a child is to have with someone;
5. child maintenance;
6. any aspect of the “care, welfare or development” of a child or in relation to parental responsibility;
7. any process that must be followed to try and vary any orders about the above, or disputes that might arise about them.

So in essence, the best interests of the child must be considered in essentially any Court orders relating to children of a relationship.

Changes to “Best Interests of a Child” in May 2024

For a long time there were 12 factors in the Family Law Act the Court had to take into account.

However, in May 2024 changes came in which try to simplify that list down to 6 (with 2 more for indigenous children).

This article deals with the current factors going forward from May 2024, not the historical ones.

What are the Factors the Court Must Consider when Assessing the Best Interests of a Child?

Of course, the Court can take into account any factors it thinks are relevant in determining the best interests of a child (you’ll see the last point in our list below covers this).

However, the Court must consider these 6 topics in making its decision.

Most of these are fairly self-explanatory, but we’ll offer a brief discussion of each in turn.

1. Promoting Safety

The Court must consider “what arrangements would promote the safety … of the child and each person who has care of the child”.

In this context, “safety” includes being subjected or exposed to family violence, abuse, neglect or other harm.

This is therefore a very broad consideration, covering anything that might possibly be considered unsafe.

It’s worth noticing that this is not just consideration of the child’s safety, but also the person who has care of the child.

So, for example, if a child has exhibited violent tendencies towards a parent then that would be a relevant consideration in how they should spend time together.

2. The Child’s Views

As part of Australia’s commitment to the Convention on the Rights of the Child, if a child is old enough to express their views then the Court must take those into account.

But this begs the question: how would a child express their views? Do they have to swear an affidavit, give evidence in Court, or can something less formal be considered?

As you might expect, the Court is going to be sceptical about evidence of the Child’s views being given by either parent in a situation where parenting matters are being determined (eg a parent swearing an affidavit saying that the child expressed a desire to stay with them). So what are the other options?

Provided it follows any applicable Court Rules, the Court can inform itself about the child’s  views in whatever way it considers appropriate.

However, there are two common ways the Court is going to pursue to find out the child’s views on a topic:

1. By directing a family consultant to give the Court a report on the matters in question; or
2. By making an order that the child have an independent lawyer appointed on their behalf.

3. Developmental, Psychological, Emotional and Cultural Needs

Naturally the Court is concerned with ensuring that any parenting orders fundamentally result in positive outcomes for the child, not simply an absence of harm.

As a result, the Court considers the impact that any proposed orders might have on a child’s development and future needs in a broad range of areas beyond just basic physical needs.

4. Parenting Capacity

Having considered the needs in (3) above, the Court then must turn its consideration to the actual capacity of the parents to provide for those needs.

So, for example, a parent who has a significant mental illness that adversely affects their ability to provide love and support may have difficulty providing some of the psychological or emotional needs of their child.

There are, of course, a broad range of factors that will go into considering one or both parents’ capacity to provide for the non-physical needs of a child.

5. Relationship with Parents

The Court must consider the “benefit to the child of being able to have a relationship with the child’s parents, where it is safe to do so”.

Here you can see a presumption: that there is a benefit to a child in being able to have a relationship with their parents.

The caveat, of course, is safety (which the Court is already considering as part of an earlier point).

So fundamentally the system accepts that a child benefits from having both parents in their lives.

This does not mean, however, that there is some kind of automatic 50/50 assumption that the Court is going to make. It only means that the Court must consider the benefit as part of its process.

The practical effect of this is that a Court will be cautious before making orders that entirely eliminate any possibility of one parent having contact with their child, or that significantly limits that contact.

6. Anything Else

As we mentioned at the start, the Court can consider any facts that are relevant to the circumstances of the child, irrespective of whether it falls strictly into one of the categories above.

Two Factors only for Indigenous Children

Beyond the 6 primary points above, there are two additional factors that the Court must consider if the child is Aboriginal or Torres Strait Islander.

Those are:

• The child’s right to enjoy the relevant culture by having support, opportunity and encouragement to:
  • Connect with any maintain connection with family and community;
  • Explore the full extent of that culture; and
  • Develop a positive appreciation of that culture.
• The likelihood of any proposed parenting order impacting on those rights.

This is effectively a slightly expanded version of the “cultural” consideration from (3) above.

What about Consent Orders?

If all the parties to a Court proceeding consent to the proposed parenting orders, the Court can still consider the factors we’ve set out above, but it does not have to.

Many Factors Inform the Decision

Given the long list of potentially relevant things the Court is going to enquire about, deciding on what orders are in the best interests of the child (especially if there are competing positions) is always challenging.

Often the evidence might not be entirely one-directional. Some factors might be in favour of one order, and others against.

Ultimately the Court has to weigh up the strength of the various elements for or against and land on a decision based on the evidence before it.

Since the best interests of the child are paramount in making parenting orders, the Court’s decision on this topic is going to be critical to the outcome sought by either parent.

As a result, it’s important to ensure you have expert family lawyers to help you put your evidence together.

If you need help with your parenting matter, get in touch today.