What is 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 the right of the 
child to be kept safe from harm, to maintain a relationship with both parents and other 
important people in the child’s life, and 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. 
The family courts further consider:
 the child’s relationship with each parent and other carers 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 carers 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 
enquires@duffysimon.com.au.