The Family Law Amendment Bill: Amending the Best Interests Factors

Under the current regime, in determining what is in the child’s best interests, the court must consider the primary and additional considerations set out in the Family Law Act.

The Primary Considerations that the Court will give significant weight to are:

• The benefit of the child having a meaningful relationship with both parents; and
• The need to protect the child from harm, abuse or neglect.

The Court will also have regard to the additional considerations, which include:

• the child’s wishes;
• the child’s relationship with each parent;
• the capacity of each parent to provide for the child;
• the extent to which each parent has participated in the child’s life;
• the extent to which each parent has fulfilled their obligations to maintain the child;
• the likely effect of any changes in the child’s circumstances;
• the practicality of the child spending time with each parent;
• the attitude of each parent to the child and parenthood;
• the maturity, sex, lifestyle and background of the child and either of the child’s parents;
• if the child is Aboriginal or Torres Strait Islander, their right to enjoy their culture and the impact of any order on that right;
• any family violence;
• whether the orders are likely to lead to the institution of further proceedings; and
• any other relevant factor.

Under the new regime, the court will have regard to the following factors in determining what is in the best interests of the child:

• what arrangements would best promote the safety of the child and their carers;
• any views expressed by the child;
• the development, psychological and emotional needs of the child;
• the benefit of them being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so;
• the capacity of each proposed carer of the child to provide for the child’s development, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring; and
• anything else that is relevant to the particular circumstances of the child.

If the child is Aboriginal or Torres Strait Islander, the court must also consider their right to enjoy their Aboriginal and Torres Strait Islander culture and the impact of the proposed orders on that right.