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Best interest of a child

How Does a Court Decide the Best Interests of a Child?

  |   Family Law

If you’ve become recently embroiled in family law proceedings, you’ve no doubt heard the phrase the “best interests of the child”. But what does this mean, and how do the courts decide?

 

The meaning

 

Part VII of the Family Law Act 1975 centres on a fundamental principle – the best interests of a child. Under the law, all orders relating to the residence, contact and maintenance of children must satisfy this overarching and all-important paramount principle.

 

The purpose behind the principle

 

The purpose behind the principle is self-explanatory – to keep kids safe, happy and healthy. There are a number of reasons why the court values this principle.

 

Reasons include:

 

  • Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives.
  • Protecting children from physical or psychological harm.
  • Ensuring that children receive adequate and proper parenting to achieve their full potential.
  • Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

 

The section even goes so far as to expressly state the rights of children, which include:

 

  • The right to know and be cared for by both their parents.
  • The right to spend time and communicate on a regular basis with both their parents,and other significant people (such as grandparents and relatives).
  • The right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

 

After all, while a marriage breakdown affects everyone, it’s the little ones who can suffer most.

 

Primary considerations

 

How a court determines what is in a child’s best interests is set out in section 60CC.

 

There are two primary factors that a court looks at, and it’s helpful to know what these are if you are applying for a court order relating to the care, custody or welfare of your child.

 

Firstly, the court considers the benefit to the child of having a meaningful relationship with both of the child’s parents.

 

Secondly, the court considers the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.

 

It should be noted that the second consideration outweighs the first – so if there is a history of family or domestic violence, this can have a significant impact on the court’s decision relating to the care and custody of a child.

 

Additional considerations

 

Following those primary factors, there is a whole list of additional considerations that the court takes into account.

 

  • Views expressed by the child: The court cares what kids think, but will give weight to their views based on their maturity and level of understanding.
  • Child’s relationship with parents: A close bond with one or both parents is certainly taken into consideration by the courts.
  • Child’s relationship with others: A child’s relationship with grandparents and other relatives can have an impact on any order relating to care and custody.
  • Active role of parents: The extent to which the parents have taken (or failed to take) an active role in spending time, making decisions or communicating with the child.
  • Parental obligations: The extent to which a parent has fulfilled their obligations to maintain the child and provide for their emotional and intellectual needs.
  • Effect of separation: The court considers what effect separation from either parent, or any other person or child, would have on them.
  • Practical difficulties: Things like distance and cost (like an interstate or overseas living arrangement) can impact the child’s ability to spend time with a parent.
  • Lifestyle factors: The court considers factors such as culture, lifestyle, traditions, maturity and gender in determining best interests.
  • Indigenous considerations: The court looks at the child’s right to enjoy an Aboriginal or Torres Strait Islander culture and the impact any order would have on that right.
  • Parental attitudes: The court considers parent attitudes about parental responsibilities.
  • Family violence: This is a significant factor to take into consideration, even if the violence isn’t directed at the child but another family member. If there has been family violence, the court will look at its nature and other circumstances or findings in relation to it.
  • Prolonged proceedings: The court considers the overall impact of court proceedings in relation to the child – including whether any order would cause unnecessary delay or further proceedings.
  • Any other factor or circumstance that the court thinks is relevant.

 

The last one is all encompassing, which goes to show that while the list is comprehensive, it is by no means exhaustive.

 

So if you are looking to obtain an order that makes the best interests of the child a paramount consideration – such as a parenting, access or residence order – be sure to consider this helpful list to ensure your application is looked upon most favourably.

 

After all, we all want the best for our children. For more information, have a chat with us today.