The ‘best interests of the child’ is a phrase that is often thrown around liberally between parties embroiled in legal proceedings over their child/ren. Some parties don’t realise that such a seemingly straightforward phase such as “best interest of the child” could possibly possess such complexity or illicit such influence over their legal matter.

Why is it so important?

Per section 60CA of the Family Law Act 1975 (‘the Act’), the best interest of the child is the paramount consideration of the court when making a parenting order.

What does the law say?

Primary considerations:

In determining the best interest of the child, the Court must consider two primary considerations under section 60CC(2) of the Act:

• The benefit of the child having a meaningful relationship with both parents; and
• The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.

However, the court gives greater weight to the latter to protect the child from harm.

Additional Considerations:

The Court may also, under section 60CC(3) of the Act, consider the following additional considerations:

• The views of the child;
• The nature of child’s  relationship with their parents or other relatives;
• The extent to which each of the child’s parent have taken, or failed to take, the opportunity participate in major long-term decisions regarding the child, spend time with the child, or communicate with the child;
• The extent to which each of the child’s parents has fulfilled, or failed to fulfill, the parents’ obligation 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 parents or other child or people that child has been living with;
• The practical difficulty and expense of a child spending time with and communicating with a parent;
• The capacity of the parents 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 characteristic of the child that the court thinks are relevant;
• If the child is an Aboriginal child or Torres Strait Islander child;
• The attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation;
• Any other fact or circumstance that the court thinks is relevant.

As you can see from above, the list of additional considerations under section 60CC(3) of the Act is lengthy. Further, they are not listed in order of importance. Rather, the relevance of each consideration depends upon the issues the Court identifies as relevant to that child. As such, where found appropriate by the Court, an additional consideration my be given greater weight than that of a primary consideration.

Consequently, what may be considered by the Court to determine the best interest of the child under section 60CC of the Act lacks certainty, as the relevant considerations are different for each case. But ultimately, the Court is seeking to ensure that the child/ren are raised in a loving, supportive family situation that meets their personal needs.

If you require a team of specialised family lawyers with assistance in your legal matter please get in touch with Barker Evans. We understand the importance of making decisions based on the best interests of your child/ren when handling your family law matter.