Court proceedings often use the phrase "best interests of the child in Family Law". However, understanding what it truly means can be complicated. Whilst the Family Law Act 1975 (Cth) states that both parents have a responsibility for the care and welfare of any children what is actually in the ‘best interests’ of children can be a complex notion to describe.

Best Interests Factors

To assist parents in understanding what is in the best interests of children, Section 60CC of the Family Law Act 1975 (Cth) provides a list of factors that the Court will consider within the circumstances of each individual case. While the primary considerations are typically given more weight, the list is divided into primary and additional considerations, and they are not necessarily the defining factor in all matters.

Primary Considerations 

When considering what is in the child’s best interests, the Court looks at the following as primary considerations. Firstly, the benefit to the child of having a worthwhile and meaningful relationship with both of their parents. And secondly, the need to protect a child from the risk that they may suffer any harm, whether physical or psychological. The Court considers the need to protect the child from being subjected to or exposed to any form of abuse, neglect, or family violence. After considering these factors, the Court then considers other additional factors.

Additional Influences to Determine Best Interests of a Child in Family Law

A range of other factor may influence rulings on the best interests on a child in family law. These include:  Firstly, the child’s views, taking into consideration things such as their maturity and level of understanding. Second, how the child relates to their parents and to others such as grandparents and other relatives. Third, If the parents are able and willing to facilitate and encourage a proper relationship between the child and the other parent. Fourth, the Court considers the effect of any change in circumstances of the child. Fifth, any expenses and practical difficulties arising from a child spending time with and communicating with a parent. Sixth, each parent’s ability (and of any other relevant person) to look after the child’s needs. Seventh, characteristics of a child or parent that the court thinks are important, including their maturity, sex, lifestyle and background. Eighth, whether any proposed order might impact on the rights of an Aboriginal or Torres Strait Islander child to know and take part in their culture. Ninth, each parent’s attitude to the child and their parental responsibilities. Tenth, any domestic violence involving either the child or a family member. Eleventh, any domestic violence orders applying to the child or a member of their family. The Court considers whether the order is a final order or if the making of the order was contested. Twelfth, the benefits or otherwise of making the order that is the most unlikely to lead to future applications and hearings. Thirteenth, the Court considers whether each parent has been meeting their parental responsibilities. This includes being involved in decision-making about major long-term issues about the child. Spending time with the child. Communicating with the child. Maintaining the child. And facilitating the other parent’s involvement in these aspects of the child’s life. And finally, if the child’s parents have separated, any events and circumstances since separation.  The Court accounts for multiple factors when deciding what is within a child's best interests. However, it determines each case on its merits and considers the individual factors of the matter.  If you would like to have a confidential discussion, contact our family law team here.

New South Lawyers’ communications are intended to provide commentary and general information. To that end, people should not rely on this communication as legal advice. Accordingly,, they should seek formal legal advice for matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.