Best interests, ICLs and family reports

When parents cannot agree, the court has to decide where a child lives, how much time they spend with each parent, and who makes the big decisions. It does this through one lens above all others: the best interests of the child. This guide explains how that test works since the May 2024 changes, what “parental responsibility” really means, and the roles played by two things many parents find confusing — the Independent Children’s Lawyer and family reports.

The best-interests test since 6 May 2024

The best interests of the child is, and has always been, the paramount consideration in parenting cases. What changed on 6 May 2024 is how the court works out those best interests. The old two-tier list of primary and additional considerations was replaced with a shorter, unified list of factors, and the child’s safety was placed front and centre.

When deciding what is in a child’s best interests, the court must consider:

• Safety — what arrangements will best promote the safety of the child and the people who care for the child, including safety from family violence, abuse, neglect or other harm. The court must take into account any history of family violence and any relevant family violence orders.
• The child’s views — any views the child expresses, weighed according to the child’s maturity and level of understanding.
• The child’s needs — the developmental, psychological, emotional and cultural needs of the child.
• Capacity to meet needs — the capacity of each person who has or is proposed to have parental responsibility to provide for those needs.
• The benefit of relationships — the benefit to the child of being able to have a relationship with both parents, and with other people who are significant to them, where it is safe to do so.
• Anything else relevant — any other fact or circumstance relevant to the particular child.

For Aboriginal and Torres Strait Islander children, the court must also consider the child’s right to enjoy their culture, and the support needed to explore and develop a positive connection to their family, community, culture, country and language.

Two things are worth underlining. First, the factors are not ranked in a fixed hierarchy (other than safety being paramount) — they are weighed against the individual child’s circumstances. Second, there is no presumption of equal shared parental responsibility and no automatic pathway to equal time. If you have read older material or spoken to someone whose case ran before May 2024, put the idea of an automatic “50/50” starting point out of your mind. It no longer exists.

What “parental responsibility” actually means

Parental responsibility is about decision-making, not about how much time a child spends with each parent. It refers to who has authority for the major long-term decisions in a child’s life — things like:

• the school the child attends and their education generally;
• major health care and medical treatment;
• religion and culture;
• the child’s name; and
• significant changes to where the child lives that affect their ability to spend time with a parent.

Parental responsibility can be allocated jointly or to one parent alone, depending on what is in the child’s best interests. Where the court orders joint decision-making about major long-term issues, the parents are required to consult each other and make a genuine effort to come to a joint decision. That does not mean agreeing on everything — it means genuinely trying.

Importantly, day-to-day decisions — what the child eats, wears, or does after school while in a parent’s care — are made by the parent the child is with at the time. You do not need to consult the other parent about routine, everyday matters. Removing the old presumption did not change this practical reality: ordinary parenting decisions belong to whoever is caring for the child.

How time is decided

Time is worked out individually for the child, not from a formula. The court starts with the child’s best interests and asks what living and time arrangements will keep the child safe and meet their developmental, emotional and cultural needs, while — where safe — supporting a meaningful relationship with both parents and other significant people.

That means the answer looks different for a breastfeeding infant, a settled ten-year-old, and a teenager with strong views and a busy life of their own. Distance between homes, each parent’s work and capacity, the child’s schooling and friendships, and any safety concerns all feed in. There is no default of alternate weekends, and no default of equal time. If a parent tells you the court “has to” give a particular split, they are mistaken.

The weight given to a child’s views

Children often have something to say about their living arrangements, and the court will listen. But a child’s views are one factor among several, given weight according to the child’s maturity and level of understanding. A thoughtful view from an older child carries more weight than a passing preference from a young one.

Crucially, the child does not decide. Placing that decision on a child’s shoulders would be unfair to them, and it would invite pressure and coaching. The judge weighs the child’s views alongside safety, needs and everything else, and then makes the decision. Children usually share their views through a family report writer or the Independent Children’s Lawyer rather than by giving evidence in court.

The Independent Children’s Lawyer (ICL)

An Independent Children’s Lawyer is a lawyer appointed to represent the child’s best interests. They are independent of both parents.

The most important thing to understand is that an ICL does not act on the child’s instructions the way a lawyer normally acts for a client. A child is not the ICL’s “client” in the ordinary sense. Instead, the ICL forms an independent, professional view of what arrangements are in the child’s best interests, and advances that view to the court — even if it differs from what a parent, or the child, wants.

An ICL is typically appointed where a case involves complex or serious issues, such as:

• allegations of family violence, abuse or neglect;
• high levels of conflict between the parents;
• serious concerns about a parent’s mental health or substance use;
• a child of mature years expressing strong views; or
• a proposal to separate siblings or relocate a child a long way away.

In practice, an ICL gathers the evidence, arranges for reports and assessments, tests the material at hearings, and makes submissions about what would be best for the child. Since the reforms, an ICL is generally required to meet with the child and give them an opportunity to express their views, unless an exception applies — for example, the child is under about five years of age, the child does not want to meet or express a view, or there are exceptional circumstances (such as a real risk of psychological harm). This requirement is designed to make sure the child’s voice is genuinely heard.

If an ICL is appointed in your case, treat them with the same respect and courtesy you would show the court. Be honest with them, keep them informed, and remember they are focused on your child — not on “winning” for either parent.

Family reports and Child Impact Reports

To understand a child’s situation, the court often relies on a written report prepared by a suitably qualified professional.

• A Child Impact Report is usually prepared early in a case by a Court Child Expert (a psychologist or social worker in the Court Children’s Service, appointed as a family consultant). It gives the court and the parents an early picture of the child’s experiences and needs, and helps everyone understand the impact of the separation on the child.
• A family report is a more detailed assessment, often prepared later. It may be prepared by a Court Child Expert or by a single expert privately engaged for the case.

What happens is broadly similar. The report writer usually interviews each parent (and sometimes other significant adults), meets with the children, and may observe each parent interacting with the children. They consider the child’s development and relationships, the parents’ proposals, and any risk factors such as family violence. They then prepare a report, which may include recommendations about arrangements.

How the court uses it: a report is evidence, and often influential evidence, but it is not the decision. The judge weighs it alongside everything else. Recommendations can be accepted, adjusted or, occasionally, departed from.

How to approach a report interview

• Be honest. Report writers are experienced and can usually tell when someone is performing or exaggerating. Overstating concerns about the other parent tends to backfire.
• Stay calm and child-focused. Talk about your child’s needs, routines and relationships — not a running list of the other parent’s faults.
• Support the other relationship where it is safe. Showing you can encourage your child’s relationship with the other parent reflects well on you.
• Be practical. Come with a realistic proposal that puts the child first.
• Follow instructions. Turn up on time, bring the children when asked, and be courteous to staff.

If you have genuine safety concerns, raise them clearly, factually and without exaggeration. See family violence and parenting for how safety is handled, and keep good records so you can speak to specifics.

Cultural considerations for Aboriginal and Torres Strait Islander children

For Aboriginal and Torres Strait Islander children, the law now expressly requires the court to consider the child’s right to enjoy their culture and to have support to connect with, explore and develop their relationship with their family, community, culture, country and language. Report writers and ICLs are expected to take these considerations into account. If this applies to your child, make sure the professionals involved understand the child’s family and community connections.

Where this fits in your case

Understanding the best-interests test helps you frame everything else — your proposals, your evidence and how you present yourself. For the bigger picture, see how parenting matters work and your first court date.

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This guide is general information, not legal advice. The law and court procedures change, and every family is different. Confirm current requirements with the Federal Circuit and Family Court of Australia or a qualified family lawyer before acting.