What the court must consider: the child’s best interests

The Federal Circuit and Family Court of Australia sets out the matters it must consider in deciding a child’s best interests. They are reproduced here exactly as the court publishes them.

On safety, the court adds that it “must consider any history of family violence, abuse or neglect and any family violence order that applies or has applied to the child or a member of the child’s family.”

The court then adds: “For an Aboriginal or Torres Strait Islander child, the Court must also consider the child’s right to enjoy their 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; 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”.

The court generally has power here in every state and territory except Western Australia, where the Family Court of Western Australia decides these matters.

Why the presumption went. Before 6 May 2024 the law required courts, in certain cases, to presume it was in a child’s best interests for the parents to make major long-term decisions jointly. The department says the term was removed because it “had led to a widespread misinterpretation of the law”, and that a court can now decide purely on what is best for the child in each case.

Time with each parent. The old law required a court to consider particular time arrangements, such as equal time, where it made an order for equal shared parental responsibility. The new law contains no presumption about how much time a child should spend with each parent. Equal time happens where the parents agree to it or a court finds it is in the child’s best interests; the department adds that a legal entitlement to equal time “has never been the case” in Australia.

The old phrase. Some pages, orders and forms still use the phrase “equal shared parental responsibility”, even ones updated recently. Since 6 May 2024 there is no such presumption: the department says the Act no longer contains any references to it.

The department’s advice for anyone asking a court for parenting orders is to give the court reasons why the orders sought are in the child’s best interests. What an order can say is in parenting orders, and what parents can agree without one is in parenting plans.

Safety is the first factor on the list, and the law gives the court ways to learn about it.

Two things in the Notice are worth knowing before filling it in. If a party answers yes to the questions about a child being abused or at risk of abuse, or suffering serious psychological harm from family violence, a copy of the Notice must go to a prescribed child welfare authority. And since 10 September 2019, in certain circumstances where family violence is alleged, people without lawyers cannot cross-examine the other party themselves; the questions are asked by a lawyer instead.

Expert evidence about risk can include family reports, psychological assessments and drug and alcohol tests, and in most cases the parties pay for those that are not provided by the Court Children’s Service.

The court describes its process as balancing protecting children from conflict with their right to a voice in decisions about them. Two roles carry that voice.

An Independent Children’s Lawyer

An Independent Children’s Lawyer represents the child’s best interests. The court says one is usually appointed on a party’s application where there are allegations of abuse, neglect or family violence, high conflict, disputed claims about a mature child’s views, serious mental health issues, or difficult and complex issues.

The lawyer must meet the child and give them a chance to express their views, unless the child is under 5, does not want to, or there are exceptional circumstances. This duty is one of the 2024 changes. The court also notes the service is not free: courts are generally inclined to order the parties to contribute to the lawyer’s costs.

The Court Children’s Service

The court’s Children’s Service is staffed by psychologists and social workers who specialise in children of separated families. It becomes involved only if a registrar or judge orders it, for example for a Child Impact Report or a Family Report. The court also runs Kids’ Corner, which explains the courts to children directly.