How does the Court decide what is in a Child’s best interests?

When considering what is in a child’s best interests, the Court follows a framework set out in the Family Law Act.  There are two ‘primary considerations’ and further ‘additional considerations’. The primary considerations are:

  • the benefit to the child of a meaningful relationship with both of their 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 additional considerations weighed by the Court in determining what is in a child’s best interests are factors such as:

  • any views expressed by your child and any factors (such as their maturity or level of understanding) that the court thinks are relevant to the weight it should give to those views;
  • the nature of your child’s relationship with each parent and any other persons (including any grandparent or other relatives);
  • the extent to which each parent has taken, or failed to take, the opportunity:
    • to participate in making decisions about major long‑term issues; and
    • to spend time and communicate with the child;
  • the extent to which each parent has fulfilled, or failed to fulfil, their obligations to maintain their children
  • the likely effect of any changes in the child’s circumstances, including the likely effect on your child of any separation from parents, siblings, or other person with whom the child has been living;
  • the practical difficulty and expense of children spending time and communicating with parents and whether that will substantially affect the child’s right to maintain relationships and direct contact with both parents on a regular basis;
  • each parent’s capacity to provide for the child’s emotional and intellectual needs; and
  • any family violence involving the child or a member of the child’s family.

The evidence relating to each of these factors must be weighed by the Judge when she or he makes a determination of what will be in your child’s best interests.

Contact us to find out more about how each of these factors relate to your circumstances.


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