The Best Interests of the Child – Additional Considerations

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 (s60CA of the Family Law Act). In doing so, it must take into account the considerations set out under section 60CC of the Family Law Act. This is divided into “primary considerations” and “additional considerations”. This article summarises the additional considerations. The primary considerations are outlined here.

1. The child’s views

Under section 60CC(3)(a) the Court is now required to consider any views expressed by the child and any factors, such as the child’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the child’s views.

How much weight the Court gives to the child’s views can differ from case to case and generally, the younger the child, the less weight will be placed on that child’s views.

Read more on the consideration of the child’s views here.

2. The child’s relationship with the child’s parents and others

In determining parenting arrangements that are in accordance with the child’s best interests, the Court recognises the importance of the relationships that the child has with their wider family, in particular grandparents and other relatives, under section 60CC(3)(b)(i) and (ii) The importance of such relationships depends largely on the facts of each case. Where the Court regards a particular relationship as being a valuable relationship to the child, the Court will be cautious not to determine an outcome that would terminate the relationship, or undermine its value for the child.

3. Parental abilities and commitment, and ability to provide for the child’s needs

Under section 60CC(3)(c), (ca), (f) and (i), the Court is required to consider both parties’ parental abilities and commitment including:

– Participating in making long term decisions about the child;

– Spending time with, and communicating with the child;

– Fulfilling obligations to maintain the child;

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

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

Read more on the Court’s consideration of parental abilities here.

4. Effects of changes in child’s circumstances

Under section 60CC(3)(d) the Court is required to consider, as an additional consideration, the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from parents and other persons.

The Court also considers important factors such as schooling, friends and the child’s lifestyle. It is important to note that the Court does not only take into account the negative impact of a change in circumstances, but also, the positive impact change in circumstances can have on the child.

Read more on the consideration of the changes in a child’s circumstances here.

5. Difficulty and expense of spending time and communicating with a parent

Under section 60CC(3)(e) 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 is an additional consideration for the Court in determining what arrangements will be in the child’s best interests. This is an important consideration where one parent lives interstate or overseas, therefore creating difficulty and expense due to the distance.

6. Family violence and family violence orders

Although the protection of children from harm as a result of family violence, abuse or neglect is one of the two primary matters the Court must consider, section 60CC(3)(j) and (k) does not require the Court to find any actual, or risk of, physical or psychological harm to the child in order to conclude that family violence is relevant to the question of the child’s best interests. Therefore it is open to the Court to consider it to be relevant that a person who inflicted family violence has limited parental capacity, and would provide a child with an undesirable model of adult relationships.

Further, where a family violence order (such as an AVO) applies or has applied, the Court may draw any relevant inferences from the details of the order and circumstances surrounding the making of the order including any evidence admitted in those proceedings, findings, or other relevant material from those proceedings.

7. The child’s characteristics

The Court is required to take into account the child’s characteristics such as the child’s maturity, sex, lifestyle and background including culture and traditions including the traditions of Aboriginal peoples or Torres Strait Islanders under section 60CC(3)(g) and (h) and section 60CC(6). The law emphasises the importance of paying attention to the evidence relating to the particular child or children, because children vary considerably not only in temperament, ability, and understanding but also in cultural background.

If you require assistance with a child 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.