What are the best interests of the child?

Best Interests of the Child

All child custody decisions are focused on ensuring the best interests of the child are made.

Generally speaking, it’s often in the child’s best interests to have a  loving relationship with both parents, but arranging such relationships can be the main challenge in resolving a child custody dispute.

There are circumstances when a court will take the view that it is in the child’s best interests to no longer see one, or both, of their parents.

However, this is in a minority of cases and will usually only where there is a history of physical, sexual or psychological abuse.

The decisions you make now in relation to your child custody arrangement will affect your child’s development and potentially your future relationship with them. Each decision should be made carefully with the help of professionals who know and understand the consequences of every action.

There are two tiers of considerations the Court will take into account.

These can be found under Section 60CC of the Family Law Act 1975 (Cth).

Paramount Considerations

The Court has two primary considerations when determining what is in the best interests of the child.

The first is the benefit to the child of having a meaningful relationship with both parents

The second is the need to protect the child from psychological or physical harm from preventing exposure or subjection to abuse, neglect or family violence

The Court places greater weight on the second consideration, being the necessity to protect the child from harm.

Additional Considerations

The law in Australia also takes into consideration a whole range of factors when determining the best interests of the child.

Below is a list of points that a judge will look at:

  • The child’s own views and how their maturity and level of understanding affects their view
  • The child’s relationship with each parent, as well as other relevant family members such as grandparents or other relatives
  • The willingness and ability of each parent to foster an ongoing and close relationship between the child and the other parent
  • The likely effect of the change in circumstances on the child, including separation from the parents and/or relatives they are living with currently
  • The general maturity, lifestyle, sex and background of the child and other characteristics considered relevant to the case
  • The right of an Aboriginal or Torres Strait Islander child to their culture and whether any proposed parenting orders would hinder this
  • Any family violence involving the child or a member of their family
  • The extent to which each parent has or has not previously fulfilled their parental responsibilities, such as whether they have:
    • Participated in long-term decisions regarding the child
    • Spent time with the child
    • Met their obligations to maintain the child, and
    • Facilitated the other parent’s involvement in the child’s life

It is clear that the ‘best interests’ of the child are different for each case. The Court will consider the circumstances of your separation in order to decide what is best for your child.

Family Dispute Resolution

It is a requirement that you attend Family Dispute Resolution (FDR) before you can bring an application to the Court for a Judge to make a decision about what the judge thinks is in the best interests of the child.

This is because the Courts want parents to make a genuine attempt to resolve their parenting issues prior to bringing an application to the Court as litigation can be extremely stressful.

The courts think that the parents of the child should be able to determine what is in the best interests of the child, and only if they cannot reach an agreement, the courts will hear both sides of the story and make a determination about the best interests of the child.

There are certain circumstances where you may be exempt from the requirement to attend FDR.

You should speak with your Lawyer about these exemptions.

Independent Children’s Lawyer

The Family Law Act 1975 allows the Court to appoint an Independent Children’s Lawyer (ICL) for the purposes of representing the best interests of the child during parenting proceedings.

The court can appoint an ICL on its own initiative if it believes one is necessary.

An application to appoint the ICL can also be made by the child, a party to the proceedings or by any other person.

The ICL’s main duty is to provide an objective opinion about what decision would be in the best interests of the child.

They must remain unbiased when dealing with other parties in the proceedings. This means that they are not to favour either the mother or the father, but they must focus only on the child’s best interests.

The ICL will be present at all court appearances and will be one of the lawyers appearing at the bench whilst your matter is being heard by a judge.

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