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.
The objects of the legislation are:
- to ensure that the best interests of children are met, including by ensuring their safety; and
- 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.
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.
Decision-making responsibility
Major long term issues in relation to a child means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about —
- the child’s education (both current and future); and
- the child’s religious and cultural upbringing; and
- the child’s health; and
- the child’s name; and
- changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Day-to-day decisions, such as what the children eat or wear, are not major long-term issues.
Where it is safe to do so, and subject to any court orders, the parents of children who are not yet 18 are encouraged to consult each other about major long-term issues in relation to the children, and in doing so, have regard to the best interests of the child as the paramount consideration.
The court can make orders about who will make decisions about major long-term issues in relation to the child. This may be sole decision-making or joint decision-making, and may be about all or specified issues. If an order is made for joint decision-making, unless specified in the order, each person is to consult with each other in relation to each decision and make a genuine effort to come to a joint decision.
There is no requirement to consult on issues that may arise if a child is spending time with a person that are not major long-term issues.
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: 29-Jan-2025
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