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What Does the “Best Interests of the Child” Really Mean?

best interests of the child

The term, “in the best interests of the child” is used widely in family law. But what does it mean in the context of shared parenting?

In considering such matters, the touchstone phrase, “in the best interests of the child” is the most important consideration of both the relevant legislation and the court. In determining what this means in a practical sense, the court takes into account both the “primary considerations” and the “additional considerations”.

Primary Considerations:

• The benefit to the child of having a meaningful relationship with both 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 must give this factor the most weight out of the two)

Additional considerations:

• 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 how much weight the court should give to the child’s views;
• The nature of the relationship between the child and each parent as well as with other people (e.g. grandparents or other relatives);
• Whether the child’s parents have taken, or failed to take, the opportunity to spend time with and communicate with the child and take part in major long term decisions about the child;
• The extent that each parent has fulfilled their obligations to financially 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 either parent or other person who the child has been living with;
• 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;
• The capacity of each of the child’s parents or any other person 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 characteristics of the child that the court thinks are relevant;
• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
• Any family violence involving the child or a member of the child’s family, including any family violence court orders in existence; and
• any other fact or circumstance that the court thinks is relevant.

In addition, 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); and
• The likely impact any proposed parenting order under this Part will have on that right.

In taking these considerations into account, the court acknowledges that each family is different and that what is in one child’s best interests might not be the same for another child – even from the same family.