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What factors does a Court look at to Decide the Best Interests of a Child

What are the specific things a Courts looks at to find what is in the Best Interests of a Child 

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.

When making Parenting Orders and Orders for what will occur with a Child, Judges are required to look at what is in the “Best Interests of a Child”.  There is acually legislation which says what this means.

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’ [Section 60CC(2)].

The second level is known as ‘Additional Considerations’ [Section 60CC(3)].

The legislation says that in determining what is in the child’s best interests, the Court MUST look at both the primary and secondary considerations.

What are the Primary Considerations in assessing the Best Interests of a Child

 



The Primary Considerations looked at to decide the Best Interests of Children are:

  • the benefit to the Child of having meaningful relationships with both parents – [Section 60CC(2)(a)];
  • the need to protect the Child from physical or psychological harm, or from being subjected or exposed to abuse, neglect or family violence – [Section 60CC(2)(b)].

If these 2 considerations conflict, then the need to protect the Child is more important consideration – [Section 60CC(2A)].

What are the Additional Considerations in assessing the Best Interests of a Child

Additional Considerations [Section 60CC(3)] looked at to decide the Best Interests of Children 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 – [Section 60CC(3)(a)];
  • the nature of the relationship of the Child with:
    • each of the Child’s parents – [Section 60CC(3)(b)(i)]; and
    • other persons (including any grandparent or other relative of the Child) – [Section 60CC(3)(b(ii))];
  • 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 – [Section 60CC(3)(c)(i)]; and
    • to spend time with the child – [Section 60CC(3)(c)(ii)]; and
    • to communicate with the child – [Section 60CC(3)(c)(iii)];
  • the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child – [Section 60CC(3)(ca)].
  • 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 – [Section 60CC(3)(d)(i); or
    • any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living – [Section 60CC(3)(d)(ii)];
  • 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 – [Section 60CC(3)(e)];
  • the capacity to provide for the all needs (including emotional and intellectual) of the Child, by:
    • each of the Child’s parents – [Section 60CC(3)(f)(i)]; and
    • any other person (including any grandparent or other relative of the Child) – [Section 60CC(3)(f)(ii)];
  • 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 – [Section 60CC(3)(g)];
  • 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) – [Section 60CC(3)(h)(i)]; and
    • the likely impact any proposed parenting order will have on that right – [Section 60CC(3)(h)(ii)];
  • the attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents – [Section 60CC(3)(i)];
  • any family violence involving the Child or a member of the Child’s family – [Section 60CC(3)(j)];
  • 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 – [Section 60CC(3)(k)(i)];
    • the circumstances in which the order was made – [Section 60CC(3)(k)(ii)];
    • any evidence admitted in proceedings for the order – [Section 60CC(3)(k)(iii)];
    • any findings made by the court in, or in proceedings for, the order – [Section 60CC(3)(k)(iv)];
    • any other relevant matter – [Section 60CC(3)(k)(v)].
  • 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 – [Section 60CC(3)(l)];
  • any other fact or circumstance that the court thinks is relevant – [Section 60CC(3)(m)].

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.

You should also look at other our information sheet giving an overview of the Court using the phrase Best Interests of a Child.

Use this link to read the actual legislation, Section 60CC of the Family Law Act 1975 titled ‘How a Court determines what is in a Child’s best interests’

 

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