How to act in the best interests of the child when parents separate and divorce

The best interests of the child is the paramount (or primary) consideration for the Family

Courts when making Orders in relation to the parenting of children after separation and divorce.

Determining what is in the best interests of a child is an individualised process where the focus is on the particular child and his or her own personal and family circumstances.

Consequently, the Family Courts have broad discretion to make decisions about parenting arrangements.

Every family, and every child’s experience of his or her family is different.

The legal assessment of what is in a child’s best interests is sensitive to these differences.

What can colloquially be referred to as the ‘best interests’ test covers:

  1. the right of the child to be kept safe from harm; and
  2. the right of the child to maintain a relationship with both parents

Further considerations include;

  • the right of the child to maintain a relationship with other important people in the child’s life; and
  • the right of the child to be parented in a way that is consistent with the child’s present and future needs.

Family law provides a method or approach to determining what is in the best interest of  the child.

The primary best interest considerations are assessed first.

These include the benefit to the child of having a meaningful relationship with both parents and that the child be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This latter consideration is given greater weight by the family courts in determining a child’s parenting arrangements.

The court then turns its attention to the additional best interest considerations (see below).

These considerations include the views or wishes expressed by the child in relation to the respective parenting arrangements proposed by each parent.

Involving children in decision making about parenting arrangements is more complex than simply asking the child what they would like to do.

The court will take into account a child’s age and maturity.

A court will seek to determine whether a child’s view is his or her own or whether the child’s position on a particular parenting arrangement has been influenced by the position of a parent.

There are a variety of ways that service providers operating within the family law system ascertain the child’s view of the proposed parenting arrangements.

This includes that these views can be obtained by attending a Child Inclusive Conference with a Family Consultant, as ordered by the court, or through voluntarily attending a Family Relationship Centre that engages in Child Inclusive Practice.

Care is needed to differentiate between the child’s views being heard and considered as part of the decision-making process, and placing a child in the position of making the decision.

For some children, having their views be determinative of the parenting arrangements is a source of considerable distress when children feel that they have taken sides in their parents’ dispute.

Additional best interest considerations

The Family Courts further consider:

  • the child’s relationship with each parent and other careers of importance to the child;
  • the extent to which a parent has been engaged in constructively parenting the child, taking into account the parent’s participation in making decisions about major long-term issues that concern the child such as the child’s health and education, and the extent to which a parent has spent time with and communicated with the child;
  • the extent to which a parent has met their financial obligation to maintain the child;
  • the effect of any change to the child’s current parenting arrangements on the child. The family courts can take into account the impact of a particular parenting arrangement on the child’s relationship with his or her parents, siblings and other important people in the child’s life;
  • the practical difficulty and expense of the child spending time with and communicating with the other parent;
  • the capacity of each parent and other careers in the child’s life to cater for the child’s needs;
  • any family violence and related orders involving the child or a member of the child’s family.

The Court also takes into account a child’s maturity, sex, lifestyle and cultural background in determining the parenting arrangements that are in a child’s best interests.

There is particular consideration of the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture and to do so with other people who share that culture.

As alluded to above, the discretion of the Family Courts is broad, and the Court can take into account any other fact or circumstances (not mentioned above) that the Court considers to be relevant given the child’s particular circumstances.

Where there is a high level of conflict between parents, family violence, grief and stress resulting from the relationship breakdown, each parent’s respective view of what is in their child’s best interest may conflict.

Timely legal advice in relation to the child’s best interests can help to identify and achieve appropriate parenting arrangements.

To find out more please call the family law team on (03) 5941 1622, or email