Primary and additional considerations of the court when determining what is in a child’s best interests

Primary and additional considerations of the court when determining what is in a child’s best interests

In circumstances where parents require enforceable arrangements in relation to their children, court orders are required, and can be made either via consent or through the court. There are many aspects of the best interests of the child requirements, however, for the purposes of this piece, the focus will only be on the primary and additional considerations of the court.

Considerations of the court

The most important consideration of the court when issuing an order, is the best interests of the child. The manner in which the court will determine what is in a child’s best interests is found in s 60CC of the Family Law Act 1975 (Cth)(the Act) and is broken down as primary and additional considerations.

Primary considerations: the primary considerations are as follows:

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

Additional considerations: the additional considerations are as follows:

  • any views expressed by the child and any factors such as the maturity level or level of understanding that the court thinks is relevant;
  • the nature of the relationship that the child has with each parent, and with others that includes grandparents or other relatives;
  • the extent that each parent has taken, or failed to take the opportunity:
    • to participate in making decisions about major long-term issues in relation to the child;
    • to spend time with the child;
    • to communicate with the child;
  • the extent to which each parent has fulfilled their obligations to maintain the child;
  • the likely effect on the child of any changes in their circumstances;
  • the practical difficulties and expense of a child spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect the right of the child to maintain personal relations and direct contact with both parents regularly;
  • the capacity of each parent and other persons to provide for the needs of the child, including any emotional and intellectual related needs;
  •  the maturity, sex, lifestyle and background of the child and the parents;
  • the child’s right to enjoy their Aboriginal or Torres Strait Islander culture if the child is an Aboriginal or Torres Strait Islander child;
  • the attitude of the parents to the child and to parenting;
  • any family violence involving the child or a member of the child’s family members;
  • any family violence orders;
  • the need to make an order that will minimise any future proceedings;
  • any other fact or circumstances that court thinks is relevant.

For any person that may be experiencing any family law issues should contact a legal practitioner who will be able to assist with their matter.

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