The Best Interests of the Child in Family Law

18 February 2022 in Family and Divorce Law

The Best Interests of the Child in Family Law

Reference to the best interests of the child is common in the context of family law proceedings. 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 most important in the context of parenting orders. This sentiment is reflected in section 60CA of the Family Law Act 1975 which states that when making parenting orders, ‘the court must regard the best interests of the child as the paramount consideration’.

What are the Best Interests of the Child?

There are various factors which contribute to the court’s determination of the best interest of the child. These factors are separated into two categories, primary considerations and additional considerations.

Primary Considerations

There are two primary considerations that must be made when determining the best interests of the child. First, the court must consider ‘the benefit to the child of having a meaningful relationship with both of the child’s parents’. 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

There are several additional considerations that must be considered when determining the best interests of the child. These include;

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.
The nature of the relationship with their parents, relatives, grandparents or other persons.
The extent to which each of the child’s parents has taken or failed to take the opportunity to parent their child.
The extent to which the child’s parents has fulfilled their parental obligation to maintain the child.
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.
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.
The capacity of the child’s parents or any other relevant person to provide for the needs of the child.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents.
The right of Aboriginal or Torres Strait Islander children to enjoy their culture.
The attitude towards the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents.
Any family violence involving the child or the child’s family.
The details of any family violence order that applies or has applied to the child or a member of the child’s family.
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.
Any other fact or circumstances that the court thinks is relevant.

For the exhaustive and exact list of additional considerations please see section 60CC (3) of the Family Law Act 1975 (Cth).

BSM Lawyers

The highly experienced family lawyers at Brander Smith McKnight are happy to advise and assist you with all aspects of divorce and family law. We appreciate that this can be a very stressful time, in particular when complex parenting issues are involved.