How a Court determines what is in the Best Interests of a Child

Best Interests of Children Parenting Family Law Act | DIY Family Law Australia

The ‘Best Interests of the Child’ considerations apply to all Children, whether or not their parents:

  • are married or were married;
  • are or were living together (cohabiting); or
  • have never lived together.

Section 60CC of the Family Law Act 1975 states how a Court determines what is in a Child’s Best Interests. 

There are 2 levels (or tiers) of considerations the Court looks at to determine what is in the ‘Best Interests of a Child’.  The first level is known as Primary Considerations.  The second level is known as Additional Considerations. 

The Primary considerations in assessing the Best Interestes of a Child are:

  1. the benefit to the Child of meaningful relationships with both parents;
  2. the need to protect the Child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.

If these 2 considerations conflict, then the need to protect the Child is more important consideration. 

The Additional considerations in assessing the Best Interestes of a Child are:

  • 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;
  • the nature of the relationship of the Child with:
    • each of the Child’s parents; and
    • 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:
    • to participate in making decisions about major long-term issues in relation to the child; and
    • to spend time with the child; and
    • to communicate with the child;
  • the extent to which each of the child's parents has fulfilled, or failed to fulfil, 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:
    • either of his or her parents; or
    • any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living;
  • 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;
  • the capacity of:
    • each of the Child’s parents; and
    • 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, and any other characteristics of the Child that the court thinks are relevant;
  • if the Child is an Aboriginal Child or a Torres Strait Islander Child:
    • 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 who share that culture); and
    • 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, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:
    • the nature of the order; 
    • the circumstances in which the order was made;
    • any evidence admitted in proceedings for the order;
    • any findings made by the court in, or in proceedings for, the order;
    • 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.
  • The Act does specifically say it must consider “any other fact or circumstance that the court thinks is relevant” and accordingly, the can also look at:
  • the history of the relationship;
  • the history of the care of the children;
  • the events that have happened since separation;
  • the circumstances that have existed since your separation.


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Content By:
Michelle Beatty

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