What Does Best Interest of the Child Mean in Australian Family Law?

The best interests of the child is a fundamental principle in Australian family law. When a parent or the Court makes any decision relating to a child, the child’s best interests are always taken into account. But what exactly constitutes the “best interest” in Australia?

What Does The Law Say?

Under Section 60CC of the Family Law Act 1975, the Court determines the best interests of the child based on two primary considerations.

These two considerations are:

• “the benefit to the child of having a meaningful relationship with both of the child’s parents; and
• 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 gives greater weight to the second consideration in order to protect a child from any harm.

Additional considerations mentioned in the Act include:

• the child’s relationship with each parent and other persons, including any grandparent or other relative of the child;
• any views expressed by the child and related factors, such as their maturity or level of understanding;
• how much each parent is willing to participate in making decisions about major long-term issues including how much time each parent spends or communicates with their children;
• the likely effect of any changes in the child’s circumstances, including the separation from the parents or any other person (grandparents or relatives) they are living with currently;
• any family violence involving the child of a member of their family;
• any family violence orders applying to the child or a member of the child’s family.

The Best Interests of the Child and Family Law Issues

Parenting Orders

A parenting order often determines who the child will live with, how much time the child will spend with each parent, how the child will communicate with the parent they do not live with, how the child will be educated, and the health and general welfare of the child.

In deciding whether to make a parenting order, the Court must consider the two primary factors as well as any other factors relating to the child as outlined in Section 60CC of the act. For example, a child’s ‘views’ may be given greater weight when making these parenting order decisions, especially if the child is older and mature enough to make a considered decision on their own.

The court will also most likely consider the relationship between each parent and the child. If the relationship between one parent and the child is more nurturing and loving than the other, this could influence the decision in the final parenting order.

Child Relocation

Child relocation cases are no different to any other parenting matter. The best interests of the child will always remain the paramount consideration when making the final decision.

If a parent decides to relocate with their child to another city for a better job opportunity, the Court might consider this to be in the best interest of the child. However, the court may deny a request to relocate if it is believed that one parent is limiting the other parent’s access to the child.

Speak to a Family Lawyer That Understands the Best Interests of the Child

If you are after a team of specialised family lawyers with experience in all children’s matters, please get in touch with Emerson Family Law. We understand the importance of making decisions about the future care of your children, and will always advise you on how to proceed with your case while maintaining the best interests of the child.