The Best Interests of the Child in Family Law

27 August 2025 in Family and Divorce Law | 5 min read | skip to FAQs

In family law proceedings relating to children, orders are made by the Court in accordance with the ‘best interests of the child‘. Considering the child’s best interests is especially important in the context of parenting orders. This sentiment is reflected in section 60CA of the Family Law Act 1975 (Cth) which states that when making parenting orders, “the court must regard the best interests of the child as the paramount consideration”.

The Family Law Amendment Act 2023 (Cth), (FLAA) which came into effect 6 May 2024, substantially influenced how the Court makes parenting orders that are in the best interests of the child.

This article looks at the previous guidelines, prior to May 2024 and the changes that have occurred as a result of the amendments to the Family Law Act in 2024.

How were the Best Interests of the Child determined prior to 2024?

There were various factors considered. These factors were separated into two categories, primary considerations and additional considerations.

Primary Considerations for the Best Interest of the Child

The two primary considerations that guided the Court’s decisions were;

1. First, the Court must consider ‘the benefit to the child of having a meaningful relationship with both of the child’s parents‘.
2. Second the Court must consider ‘the need to protect the child from physical or psychological harm or from being subject to, or exposed to abuse, neglect or family violence’. The second primary consideration must be given greater weight than the first primary consideration in the Court’s determination of the child’s best interests.

Additional Considerations for the Best Interest of the Child

There were several additional factors that were considered when determining the best interests of the child. These included;

1. Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s view.
2. The nature of the relationship with their parents, relatives, grandparents or other persons.
3. The extent to which each of the child’s parents has taken or failed to take the opportunity to parent their child.
4. The extent to which the child’s parents has fulfilled their parental obligation to maintain the child.
5. The effect of any changes to the child’s circumstances, including the likely effect on the child of any separation from either their parents or other person they had been living with.
6. The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
7. The capacity of the child’s parents or any other relevant person to provide for the needs of the child.
8. The maturity, sex, lifestyle and background of the child and of either of the child’s parents.
9. The right of Aboriginal or Torres Strait Islander children to enjoy their culture.
10. The attitude towards the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents.
11. Any family violence involving the child or the child’s family.
12. The details of any family violence order that applies or has applied to the child or a member of the child’s family.
13. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
14. Any other fact or circumstances that the court thinks is relevant.

These guidelines in family law legislation were considered to be cumbersome and too complex. The changes in 2024 aimed to streamline the decision making for the Court to act in the best interest of the child.

Change in Decision Making for the Benefit of the Child in May 2024

In essence, this is a change from the previous Equal Shared Parental Responsibility to the current Joint Decision Making. The assumption is that this will benefit the long term care and welfare of the child. It eliminates the Goode Pathway, which has been the basis of equal shared parental responsibility.

Previous: Equal Shared Parental Responsibility

The Court previously presumed that it was in the child’s best interest for there to be equal shared parental responsibility. This is different from equal time, in that it regards involvement in making decisions regarding major long-term issues concerning the child. This can include education, cultural exposure, health, naming or religious decisions.

Current: Joint Decision Making in Family Law Changes

The Family Law Amendment Act 2023 (Cth) moved away from this presumption and implemented a joint decision-making regime. This means that both parents are required to consult with each other in a genuine attempt to come to a joint decision regarding certain major long-term issues concerning the child.

The goal of this new method is to ensure that both parents have an involved role in the important parts of their child’s life. This stems from the principle that it is generally in the child’s best interests for both parents to be involved in their upbringing.

The Elimination of the Goode Pathway

This change involves eliminating the Goode Pathway. Under the previous regime of equal shared parental responsibility, the Court used the Goode Pathway which involved considering the following, in order:

1. Equal Shared Parental Responsibility;
2. Equal time;
3. Substantial and significant time.

Current Best Interests for the Child  Requirements 

In a significant streamlining of a serious and sensitive consideration, the Court now considers 7 main factors in deciding what arrangements will be in the best interests of the child. These factors include:

1. the safety of the child and people who care for the child (including any history of family violence and family violence orders);
2. the child’s views;
3. the developmental, psychological, emotional and cultural needs of the child;
4. the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
5. the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings);
6. anything else that is relevant to the particular circumstances of the child; and
7. If the Court is making orders about an aboriginal and/or Torres Strait Islander child, the court will also consider how parenting arrangements will help that child to experience their aboriginal and Torres Strait Islander culture.

How can BSM Sydney Lawyers assist you?

The experienced and compassionate family lawyers at BSM Lawyer Sydney are happy to assist you with all aspects of divorce and family law. Our family lawyers will effectively advocate for you in the negotiation of parenting orders. We appreciate that this can be a very stressful time, in particular when complex parenting issues are involved. BSM Sydney Lawyers will represent you in negotiations both inside and outside of court. Over 95% of our family matters settle prior to going to court, saving you time, stress and money. The senior family lawyers at BSM Lawyer Sydney offer a free 20 minute, no obligation consultation.

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