What Is the Best Interest of the Child in Family Law?

Introduction

When parents separate, one of the first concerns is usually the same: what arrangements are best for the children? In Australian family law, that question is addressed through the principle of the best interests of the child.

This is the central legal test the Court uses when making parenting orders. It applies whether the issue is where a child will live, how much time they will spend with each parent, who will make important decisions, or whether relocation should be allowed.

For many parents, the phrase sounds sensible but vague. What does it actually mean? Does it mean equal time? Does it mean the child chooses? Does it mean one parent’s wishes matter more than the other’s?

The short answer is that the Court does not decide parenting matters based on what is “fair” for the adults. The law requires the Court to focus on the child’s welfare, safety, needs and circumstances.

This article explains what the best interests of the child means in family law in Australia, how the Court applies the test, common misunderstandings, and what parents should do when a parenting dispute arises.

This article is general information only and is not legal advice.

What Does “Best Interests of the Child” Mean?

In Australian family law, the best interests of the child is the paramount consideration when a court decides whether to make a parenting order.

In practical terms, this means the Court must put the child’s interests ahead of the competing preferences, frustrations or claims of the parents. The Court is not deciding who is the “better” parent in a broad moral sense. It is deciding what parenting arrangements are most likely to promote the child’s welfare and development.

The concept is intentionally broad. Every child and every family is different. What is in one child’s best interests may not be in another’s.

For example, the best arrangement for:

• a toddler may be different from that of a teenager;

• a child with additional needs may be different from that of a child without them;

• a family with high conflict or family violence issues may be different from a low-conflict co-parenting arrangement.

The Relevant Australian Law

The main legislation is the Family Law Act 1975 (Cth).

Section 60CA: Paramount Consideration

Section 60CA provides that when deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration.

That principle sits at the heart of parenting disputes in Australia.

Section 60CC: How the Court Decides Best Interests

The law does not give a single fixed definition of “best interests”. Instead, section 60CC sets out the matters the Court must consider.

Following the amendments that commenced on 6 May 2024, the Court considers six core matters:

• what arrangements would promote the safety of the child and each person who has care of the child;

• any views expressed by the child;

• the developmental, psychological, emotional and cultural needs of the child;

• the capacity of each person who has or is proposed to have parental responsibility to provide for those needs;

• the benefit to the child of being able to have a relationship with parents and other significant people, where it is safe to do so;

• anything else relevant to the particular circumstances of the child.

There are also additional considerations for Aboriginal and Torres Strait Islander children, including the child’s right to enjoy and maintain connection with culture, family, community, country and language.

Safety Has Particular Importance

The current law places strong emphasis on safety, including safety from:

• family violence;

• abuse;

• neglect;

• exposure to harmful behaviour;

• other forms of physical, psychological or emotional harm.

The Court must also 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.

How the Court Applies the Best Interests Test

The Court’s task is not to apply a formula. It undertakes a careful assessment of the child’s circumstances.

1. Safety

If there are allegations of violence, coercive control, substance misuse, threats, neglect or abuse, those issues are likely to be central. The Court may make orders designed to reduce risk, including:

• supervised time;

• no direct contact between parents except through an app or third party;

• neutral changeover arrangements;

• restrictions on travel or communication;

• in serious cases, limited or no time.

2. The Child’s Views

A child’s wishes may be relevant, but they are not automatically decisive. The weight given to those views depends on matters such as:

• the child’s age;

• maturity and level of understanding;

• consistency of the views;

• whether the views appear influenced by a parent.

Older children’s views may carry considerable weight, but the Court still asks whether the proposed arrangement is in that child’s best interests overall.

3. Emotional, Developmental and Cultural Needs

The Court considers the child as a whole person. This may include:

• routine and stability;

• emotional security;

• schooling and learning needs;

• medical and therapeutic needs;

• family and sibling relationships;

• cultural and linguistic identity.

4. Capacity of Each Parent or Carer

The Court looks at each parent’s practical and emotional capacity to care for the child. This can include:

• ability to provide a safe home;

• willingness to support the child’s education and health needs;

• capacity to communicate about major issues;

• insight into the child’s emotional needs;

• ability to encourage an appropriate relationship with the other parent, where safe.

5. Benefit of Relationships

Children often benefit from meaningful relationships with both parents and other important people, such as grandparents or siblings. However, the law now expressly qualifies this by asking whether such a relationship is beneficial where it is safe to do so.

6. Other Relevant Circumstances

The Court may consider any other matter relevant to the child’s circumstances, including:

• relocation proposals;

• practical travel arrangements;

• long-term conflict between the parents;

• the effect of change on the child;

• the history of caregiving.

Common Parenting Scenarios

Separated Parents With No Safety Concerns

If both parents are able to care for the child appropriately, the Court may focus on stability, the child’s routine, communication between parents, schooling, and maintaining relationships with both households.

Family Violence Allegations

Where one parent alleges family violence, the Court may need to decide whether unrestricted time is safe. The best interests analysis may shift heavily toward protective arrangements.

Relocation Cases

If one parent wants to move interstate or far from the other parent, the Court considers how that move would affect the child’s relationships, stability, schooling, support systems and overall wellbeing. There is no automatic rule either for or against relocation.

High-Conflict Co-Parenting

In cases of entrenched conflict, the Court may make detailed parenting orders to reduce the scope for argument, including clear communication protocols and changeover arrangements.

What the Best Interests of the Child Does Not Mean

There are several common misconceptions in family law parenting disputes.

It Does Not Mean Automatic 50/50 Time

Australian family law does not guarantee equal time. Equal time may be appropriate in some cases, but not in others. The question is always what arrangement is in the child’s best interests.

It Does Not Mean the Child Simply Decides

A child’s views are important, but they are one factor among several. The Court does not hand decision-making over to the child.

It Does Not Mean Mothers or Fathers Have Greater Rights

The law does not start with a preference based on gender. The focus is on the child, not parental status.

It Does Not Mean the Court Rewards or Punishes Parents

The Court is not there to punish infidelity, poor communication, or personality clashes unless those matters affect the child’s welfare or safety.

Practical Examples

Example 1: Equal Time Is Not Practical

A child attends school near one parent’s home, has therapy appointments during the week, and struggles with frequent transitions. Even if one parent seeks equal time, the Court may decide that a primary-home arrangement is more stable and therefore in the child’s best interests.

Example 2: Child Wants to Live With One Parent

A 15-year-old expresses a strong wish to live primarily with one parent. The Court will consider that view seriously, but will still examine safety, schooling, emotional wellbeing, and whether the view is independently formed.

Example 3: Parent Undermining the Other Parent

One parent repeatedly speaks negatively about the other in front of the child and interferes with communication. That behaviour may be relevant because it can harm the child and undermine healthy parenting arrangements.

Common Mistakes Parents Make

Parents in parenting disputes often unintentionally weaken their position by focusing on the wrong issues.

Common mistakes include:

• treating parenting arrangements as a question of parental entitlement;

• withholding the child to gain bargaining power;

• relying on verbal agreements only;

• sending hostile messages or social media posts;

• involving the child in adult conflict;

• assuming the Court will favour equal time regardless of circumstances;

• failing to document concerns about safety, communication or care arrangements.

A child-focused approach is usually the most persuasive and most constructive.

Steps a Person Should Take

If there is disagreement about parenting arrangements, sensible early steps include:

1. Focus on the Child’s Needs

Keep attention on routine, safety, schooling, emotional stability and practical care.

2. Keep Clear Records

Maintain records of:

• care arrangements;

• proposals made;

• important communications;

• missed time or changeover issues;

• any incidents affecting the child’s wellbeing.

3. Try to Resolve Matters Early

If appropriate, parents may try negotiation or family dispute resolution before court proceedings.

4. Formalise Agreements

If agreement is reached, it may be appropriate to record it in a parenting plan or apply for consent orders.

5. Respond Quickly to Safety Concerns

If there are allegations of abuse, violence or serious instability, urgent protective steps may be needed.

When to Speak to a Family Lawyer

It is prudent to obtain tailored assistance where:

• parenting arrangements have broken down;

• there are allegations of family violence or abuse;

• one parent is refusing time or communication;

• there is a proposed relocation;

• a child has complex medical, developmental or educational needs;

• there is concern about breaching existing parenting orders;

• court proceedings are on foot or being contemplated.

Early advice often helps parents understand the likely legal issues, avoid procedural mistakes, and approach negotiations in a more effective way.

FAQ: Best Interests of the Child in Australia

What does “best interests of the child” mean in Australia?

It means the Court must put the child’s welfare, safety and needs first when making parenting orders under the Family Law Act.

Does the Court always order equal shared care?

No. Equal time is not automatic. The Court considers what arrangement best meets the child’s interests in the particular circumstances.

How much weight does the Court give to a child’s wishes?

That depends on the child’s age, maturity, understanding and the context in which the views were expressed.

What if there has been family violence?

Family violence is highly relevant. The Court must consider safety and may make protective parenting orders, including supervised or limited time where appropriate.

Can grandparents be considered under the best interests test?

Yes. The Court may consider the benefit to the child of having a relationship with other significant people, including grandparents, where safe and appropriate.

Conclusion

The phrase best interests of the child is the foundation of parenting law in Australia. It requires the Court to focus on the child’s safety, emotional and developmental needs, family relationships, views and individual circumstances when making parenting orders.

Importantly, the test is not about what feels fair to the adults. It is about what arrangement best supports the child’s welfare.

If there is a dispute about parenting arrangements, understanding how the Court approaches the best interests of the child can help parents make better decisions, avoid common mistakes, and approach the process with a clearer sense of what matters legally.

Contact the Firm

If your family is dealing with a parenting dispute, relocation issue, family violence concern, or uncertainty about parenting orders, the firm’s family law team can assist with clear, practical guidance tailored to your circumstances. Contact the firm to discuss your options in relation to parenting arrangements and the best interests of the child.

This publication is general information only and does not constitute legal advice. Liability limited by a scheme approved under Professional Standards Legislation.