Children

Advice based on experience

Best interests of the child

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

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

When the presumption of equal shared parental responsibility applies, the starting point is what is in the best interest of the child.

In determining what is in the child’s best interests, the court must consider the matters set out in the Family Law Act. The matters are divided into:

  • Primary considerations; and
  • Additional considerations.

Primary considerations

The primary considerations are:

  • The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

If the above 2 factors are inconsistent with each other, the court is to give greater weight to the need to protect the child.

Parenting matters require you to adapt to ongoing changes. Talk to someone who you can trust and who can provide solutions in a timely manner

Additional considerations

The court also takes into account additional considerations which include:

  • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
  • The nature of the relationship of the child with:
    1. Each of the child’s parents; and
    2. Other persons (including any grandparent or other relative of the child);
  • The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
    1. To participate in making decisions about major long-term issues in relation to the child; and
    2. To spend time with the child; and
    3. To communicate with the child;
  • The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
    1. Either of his or her parents; or
    2. Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
  • The capacity of:
    1. each of the child’s parents; and
    2. any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

  • The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
  • If the child is an Aboriginal child or a Torres Strait Islander child:
    1. The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
    2. The likely impact any proposed parenting order under this Part will have on that right;
  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  • Any family violence involving the child or a member of the child’s family;
  • If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
    1. The nature of the order;
    2. The circumstances in which the order was made;
    3. Any evidence admitted in proceedings for the order;
    4. Any findings made by the court in, or in proceedings for, the order;
    5. Any other relevant matter;
  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
  • Any other fact or circumstance that the court thinks is relevant.

Presumption of equal shared parental responsibility when making parenting orders

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

The presumption relates solely to the allocation of parental responsibility for a child. It does not mean a presumption that the child spend equal time with each parent.

The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

  • Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
  • Family violence.

When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

“I wish to thank you for all your efforts on our behalf. Simply thanking you doesn’t cover the difference your help has made, not only to our lives, but importantly to the long term prospects for [name of child removed].

The work you have put in and, I believe, the emotion you invested, goes way beyond the solicitor-client contract. We are enormously grateful.”

[Name of grandparents in Brisbane removed, 19 June 2020]

This case involved both family law and domestic violence.

“Dear Duc and the staff at Freeman Lawyers

Your dedication to clients and the hard work you’ve done for me almost daily has not gone unnoticed and will never be forgotten.

This went on for me for a long time and thank you for all the hours and work you put in to win this for me and [name of child removed].

I always had complete faith you would deliver me the best outcome.”

[Mother/Wife in Brisbane, June 2020]