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:
The primary considerations are:
If the above 2 factors are inconsistent with each other, the court is to give greater weight to the need to protect the child.
The court also takes into account additional considerations which include:
to provide for the needs of the child, including emotional and intellectual needs;
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:
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.