Children’s Law Reform Act

Children's Law Reform Act

Best interests of the child test:

1.The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections 2, 3 & 4.

2. The court shall consider all the child’s needs and circumstances, including,
a. the love, affection and emotional ties between the child and,
i. each person entitled to or claiming custody of or access to the child,
ii. other members of the child’s family who reside with the child; and
iii. persons involved in the child’s care and upbringing;

b. the child’s views and preferences if they can be reasonable ascertained;
c. the length of time the child has lived in a stable home environment;
d. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
e. any plans proposed for the child’s care and upbringing;
f. the permanence and stability of the family unit with which it is proposed that the child will live;
g. the ability of each person applying for custody of or access to the child to act as a parent;
h. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

3. A person’s past conduct shall be considered only:

a. in accordance with subsection (40; or
b. if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

4. In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against:

  • his or her spouse
  • a parent of the child to whom the application relates
  • a member of the person’s household, or
  • any child

5.For the purposes of subsection (4), anything done in self-defense or to protect another person shall not be considered violence or abuse.

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