What Are “The Best Interests of the Child”?

In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Family Law Act).

What are ‘the best interests of the child’?

In determining what is in the child’s best interests, the Court must take into account the considerations set out under section 60CC of the Family Law Act. The primary considerations are:

– The benefit to the child of having a meaningful relationship with both of the child’s parents (i.e., the value of parental involvement); and

– The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The legislation clarifies that in applying the two primary considerations, the Court is to give greater weight to the need to protect the child from harm.

The Court must also take into consideration the additional considerations of:

– 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 views;

– The nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

– The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

– The extent to which each of the child’s parents has fulfilled, or failed to fulfill, the parent’s obligations to maintain the child;

– The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of thechild), with whom he or she has been living;

– The practical difficulty and expense of a child spending time with and communicating with a parent;

– The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs;

– The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents;

– If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

– The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

– Any family violence involving the child or a member of the child’s family;

– If a family violence order applies, or has applied — any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

– 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 circumstance that the court thinks is relevant.

Section 60CC of the Act creates a two-tiered structure, of primary considerations and additional considerations. It is important to note that the primary considerations do not necessarily outweigh, or trump, any combination of additional considerations. Furthermore, the question of what arrangements will be in a child’s best interests cannot be resolved by some mathematical or quantitative approach. The cases that come before the Family Court and Federal Circuit Court of Australia indicate that the Court must weigh up all the considerations having regard to their importance in the circumstances of the case. (Read more on primary considerations here. Read more on additional considerations here.)

Both long-term and short-term future prospects are relevant to the overall assessment of the child’s welfare. For example, In the Marriage of Watts (1976) the Full Court, approving Orders which placed a child in the custody of her mother and the company of her sisters, said that the trial judge was right to find that these factors “outweighed the likelihood of upset and distress occasioned by the change in custody after more than three years”. On the other hand, In the Marriage of Sanders (1976) the Court focused on the short-term welfare of the child, in that case a two month old baby. However, although long-term arrangements may be ultimately more important, the Court may be likely to focus on immediate matters in situations where the future prospects are too difficult to predict.

If you require assistance with a custody dispute or obtaining parenting orders, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.