Children’s Best Interests and Parenting Orders

Blog post by Kate O’Leary


When making a parenting order, the Family Law Act requires the Court to consider the best interests of the child as the paramount, and primary, consideration. Parents must also apply this principle when making parenting plans.

The primary considerations, as established by the Family Law Act, are:

  1. the benefit to the child of a meaningful relationship with both parents; and
  2. the need to protect the child from physical or psychological harm.

The Court will always apply more weight to the second consideration.

The Court can then consider the following additional considerations:

  • any views expressed by the child and factors which may affect those views (for example, the child’s maturity and level of understanding);
  • the nature of the relationship that child has with each parent, and other people (including grandparents and relatives);
  • The extent to which each parent has contributed to, or failed to; participate in long-term decisions regarding the child; spend time with the child; and communicate with the child;
  • The extent to which each parent has or has not fulfilled their obligations to maintain the child;
  • The likely effect on the child of any changes in his or her circumstances, including the likely effect of separation from either of his or her parents, or any other person (whether that person is a sibling, grandparent or other relative);
  • The expense and practicality of a child spending time and communicating with a parent;
  • Each parent’s ability to provide for the child’s financial, intellectual and emotional needs;
  • The maturity, sex, lifestyle and background of the child and of either of the parents (and any other characteristics the court thinks relevant);
  • The right of an Aboriginal or TSI child to enjoy his or her culture and the likely impact any proposed order would have on that right;
  • Any family violence involving the child or a member of the child’s family;
  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings; and
  • Any other factor the Court considers relevant.

Children’s Best Interests – points to note:

A parenting plan is a written agreement, between the parents, that sets out the parenting arrangements for the child. As it is a mutually agreeable arrangement there is no need to attend court. A parenting plan can be changed, as agreed by both parties, and unless a court orders otherwise it is not a legally enforceable agreement.

A parenting order is a legally enforceable agreement approved by the court. A parenting order will cover parenting agreements and will often stipulate financial matters such as maintenance. Also called consent orders, parenting orders can be applied for without attending court.

Culshaw Miller Divorce & Family Lawyers can advise you on all aspects of parenting orders and how the court applies the Family Law Act in determining what is in children’s best interests. Contact Kate O’Leary for more information.