Best Interests of the Child and Family Law

One of the most common questions we get asked is how a family court in Australia makes a decision about what is in the best interest of the child. Here’s the relevant information from the Family Court of Australia website.

You’ll find the full detail on their website here but the core principles are as follows.

The Family Law Act makes clear that:

  • both parents are responsible for the care and welfare of their children until the children reach 18, and
  • there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Two tiers of consideration

In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:

Primary considerations

  • The benefit to children of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
  • The Court is required to give greater weight to the consideration of the need to protect children from harm.

Additonal considerations

  • The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding.
  • The child’s relationship with each parent and other people, including grandparents and other relatives.
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
  • The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
  • The practical difficulty and expense of a child spending time with and communicating with a parent.
  • Each parent’s ability (and that of any other person) to provide for the child’s needs.
  • The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
  • The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
  • The attitude of each parent to the child and to the responsibilities of parenthood.
  • Any family violence involving the child or a member of the child’s family.
  • Any family violence order that applies to the child or a member of the child’s family, if:
    • the order is a final order, or
    • the making of the order was contested by a person.
  • Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
  • Any other fact or circumstance that the Court thinks is relevant.

The important thing to note here is that the court is required to give greater weight to the protection of the child from harm, meaning that where there is a risk of harm identified (or perhaps claimed), the court is obliged to consider this more important in the short term than the need of the child having a meaningful relationship with both parents.

 

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