Deciding children's best interests
When you apply for a parenting order, the court will look at what is best for the children. In doing this, the court must look at the following primary (most important) and secondary (other) considerations.
The primary considerations are:
- the benefit of children having a meaningful relationship with both of their parents
- the need to protect children from physical and psychological harm. This includes children being physically or psychologically hurt, being neglected or seeing family violence.
The other considerations are:
- children's views - the court will look at how mature children are and how much they understand. Children do not have to express views if they do not want to
- what kind of relationship children have with their parents and any other people significant to them, including siblings, grandparents and other relatives
- whether each parent will encourage a close, ongoing relationship between the children and the other parent
- the likely effect of any change to where children have been living or staying, including separating them from either parent, siblings, grandparents and other relatives and other people important to their welfare
- the practical difficulty and expense of children seeing each parent, and whether that difficulty will affect their right to have a relationship, and to spend time with and/or communicate with each parent
- how much each parent and any other person (including grandparents and other relatives) can provide for the children's needs, including emotional and intellectual needs
- the maturity, sex, lifestyle and background (including culture and traditions) of the children and of each parent, and anything else about the children that the court thinks is important
- if children are Aboriginal or Torres Strait Islander children, their right to enjoy their culture (including with others of that culture)
- each parent's attitude to the children and to the responsibilities of being a parent
- any family violence involving the children or a member of their family
- any family violence order that applies to children or a member of their family. The order must be a final order or an order that was made after being contested (challenged in court) by the other person
- whether the order will mean less risk of everyone coming back to court
- anything else the court thinks is important.
The court must also consider how much each parent has participated in their responsibilities as parents, including:
In particular, the court must look at the events that have happened, and the circumstances that have existed since your separation when considering how each parent has participated in their responsibilities as parents.
If the court is making a
consent order (an order where all the people involved agree), the court may (but doesn't have to) have regard to the primary and additional considerations in determining the children's best interests.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.