Best interests, ICLs and family reports

The best-interests test (from 6 May 2024)

Parenting decisions are governed by the best interests of the child. The reforms that commenced on 6 May 2024 replaced the old two-tier list with a shorter, clearer set of factors, and made the child’s safety the paramount consideration.

The court must consider matters including:

• what arrangements would promote the safety of the child and each person who cares for them (including any history of family violence and any family violence orders);
• any views expressed by the child (given weight appropriate to their maturity and understanding);
• the child’s developmental, psychological, emotional and cultural needs;
• the capacity of each person who is to have parental responsibility to provide for those needs;
• the benefit to the child of a relationship with their parents, and other people significant to them, where it is safe to do so; and
• anything else relevant to the child’s circumstances.

For an Aboriginal or Torres Strait Islander child, the court must also consider the child’s right to enjoy their culture.

Importantly, there is no presumption of equal shared parental responsibility and no automatic starting point of equal time. It’s about the individual child.

Parental responsibility

“Parental responsibility” is about major long-term decisions — schooling, health, religion, name, and living arrangements. The court can order joint or sole responsibility. If it’s joint, the parents are expected to consult and make a genuine effort to reach a joint decision on those major issues (day-to-day decisions are made by whoever the child is with).

Independent Children’s Lawyer (ICL)

In some cases — often where there are serious issues — the court appoints an Independent Children’s Lawyer. The ICL represents the child’s best interests, forms an independent view of what’s best, and helps the court. They don’t simply do what the child (or either parent) wants.

Family reports / Child Impact Reports

The court may order a family report (or a shorter Child Impact Report), prepared by a qualified family consultant or psychologist who meets with the parents and children and provides observations and recommendations to help the court. Treat it seriously — be honest, child-focused, and calm.