Best Interests of the Child

The paramount principle — section 60CA

Section 60CA establishes that the best interests of the child must be the paramount consideration in making parenting orders. "Paramount" means it overrides all other considerations — parents' wishes, convenience, and even fairness between parents.

In practice, this means every proposal put to a court, every order a court makes, and every parenting arrangement agreed between parties must be evaluated through the question: what serves this child's interests? The court is not tasked with rewarding good behaviour or punishing poor conduct — it is tasked with identifying what arrangement best promotes the child's wellbeing.

The six general considerations — section 60CC(2)

Since 6 May 2024, section 60CC(2) lists six general considerations with no hierarchy. Courts must consider all six when determining the child's best interests. For a detailed factor-by-factor analysis, see our complete Section 60CC guide.

(a) Safety

What arrangements would promote the safety of the child, and each person who has care of the child — including safety from family violence, abuse, neglect, or other harm. While the six factors have no formal hierarchy, safety is listed first, signalling its importance. When safety concerns exist, they can outweigh all other considerations.

(b) Any views expressed by the child

The court must consider any views the child has expressed. There is no fixed age threshold — weight depends on the child's maturity and understanding. The 2024 amendments removed the explicit maturity qualifier from the legislation, recognising the child's right to be heard. Children are never compelled to express views (section 60CE). For a detailed guide, see What Age Can a Child Decide Custody?

(c) Developmental, psychological, emotional and cultural needs

The court assesses what the child needs for healthy development across all dimensions — not just physical care, but emotional support, psychological wellbeing, educational needs, and cultural connection. This factor is particularly relevant for younger children, children with disabilities, and Aboriginal or Torres Strait Islander children.

(d) Capacity of each person

The capacity of each person who has (or is proposed to have) parental responsibility to provide for the child's developmental, psychological, emotional and cultural needs. Courts assess practical parenting ability, not wealth or social status — stability, emotional availability, and willingness to prioritise the child's needs are what matter.

(e) Maintaining relationships

The benefit to the child of being able to have a relationship with parents, and other persons significant to the child (including grandparents), where it is safe to do so. The critical qualifier is "where it is safe to do so" — this factor does not override safety, it operates alongside it. For grandparent-specific guidance, see Grandparents' Rights in Custody.

(f) Anything else relevant

A catch-all allowing courts to consider anything else relevant to the particular circumstances of the child. This preserves judicial flexibility to address factors that don't fit neatly into the other five categories — for example, the practical logistics of proposed arrangements, a parent's work schedule, the child's connection to their school and community, or sibling relationships.

Additional mandatory considerations

Beyond the six general considerations, the court must also consider two additional matters.

Family violence history — section 60CC(2A)

The court must consider any history of family violence, abuse, or neglect involving the child or a person who has had care of the child. This is a mandatory consideration that operates alongside the six general factors — the court cannot skip it. Evidence of past violence is relevant even if it has stopped, as it informs the assessment of future risk and safety.

Aboriginal and Torres Strait Islander children — section 60CC(3)

If the child is Aboriginal or Torres Strait Islander, the court must also consider:

• The child's right to enjoy their Aboriginal or Torres Strait Islander culture
• The child's right to connect with and maintain connection with family, community, culture, country, and language
• The likely impact of any proposed order on those rights

The 2024 amendments also introduced an inclusive definition of "member of the family" recognising Indigenous kinship structures.

What changed on 6 May 2024

The Family Law Amendment Act 2023 (effective 6 May 2024) made the most significant changes to best interests assessments in decades. These changes apply to all new and existing proceedings from that date, except where a final hearing had already begun.

For a detailed breakdown of the time arrangement implications, see our 50/50 Custody Arrangements guide and Sole vs Shared Custody comparison.

How courts weigh the factors

Best interests is not a checklist exercise. Courts conduct a holistic assessment, weighing all relevant factors in the context of each child's unique circumstances.

• No fixed formula — courts don't assign numerical weights. The significance of each factor varies from case to case.
• No hierarchy (but safety leads) — the six factors are formally non-hierarchical, but safety is listed first and can outweigh everything else when genuine concerns exist.
• Evidence-based — courts rely on credible evidence — affidavits, family reports, medical records, school records — not assertions.
• Future-focused — the primary concern is what arrangements serve the child going forward, not punishment for past behaviour.
• One factor can be decisive — a single significant factor (such as serious safety concerns) can outweigh multiple other considerations. Prevailing on more factors does not mean winning the case.

Evidence and family reports

Family reports prepared by court-appointed consultants are often the most influential evidence in parenting matters. The consultant's assessment directly addresses the section 60CC factors.

Consultants typically assess:

• Parent-child observations — warmth, responsiveness, communication quality
• Child interviews — age-appropriate discussions without pressure
• Parent interviews — parenting approach, proposals, capacity
• Collateral information — schools, doctors, therapists, other professionals

Practical application

Framing your proposals through the best interests lens is essential — whether in court, mediation, or negotiation.

• Start with the child — frame proposals in terms of child benefit, not parental preference or fairness.
• Address the six factors directly — structure submissions around section 60CC(2) considerations.
• Provide evidence — back claims with documentation: records, reports, third-party observations.
• Show willingness to facilitate — demonstrate support for the child's relationship with both parents (where safe).
• Be specific — detailed, workable arrangements are more persuasive than vague proposals.

Common questions