THE PARAMOUNT CONSIDERATION: A CHILD’S BEST INTEREST

The Family Law Act 1975 (Cth) (the Act) section 60CA requires the Court to consider the best interests of a child when deciding a particular parenting order.

Sometimes during separation, it can be hard for parents to put aside their own interests and recognise the outcome(s) that will be best for their child or children.

Section 60CC of the Act sets out primary and additional matters that the Federal Circuit and Family Court of Australia must consider when making orders.

What are the primary considerations?

The primary considerations are:

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

What are the additional considerations?

Some of the additional factors the court considers include:

1. views expressed by the child;
2. nature of the relationship with each parent and other people e.g., grandparents;
3. whether parents have taken opportunities to

1. participate in making decisions about major long term issues;
2. spend time with the child;
3. communicate with the child;

4. whether the parents have met their parental obligations to maintain the child;
5. the difficulty or expense of a child spending time with and communicating with a parent;
6. the capacity of each parent to provide for the needs of the child;
7. a parent’s attitude to the child and to the responsibilities of parenthood; and
8. family violence.

Views and wishes by the child

When considering the views and wishes of a child the court may have regard to other factors to assess how much weight they should give to those views such as the child’s age, level of maturity, or undue influence from one parent.

Taking opportunities to participate

The court will consider the effort each parent puts into participating in the child’s life including the time they spend and communication they have with the child.

The court may make orders for children to live with or spend more time with one parent over the other, if the other parent has:

1. been absent from the child’s life for an extended period or periods of time;
2. failed to meet their child support obligations;
3. failed to spend time with or communicate with a child (exception where one parent unilaterally withholds care); or
4. refuses to engage with the other parent in major long-term decisions for the child.

Capacity of each parent to provide for the needs of the child

Every child has different needs that may require specific care and attention e.g., a physical impairment, medical condition, mental health, or that they respond better to a specific parenting method. Parents should consider their own ability to care for the specific needs of their children. This may include learning to put aside conflict for the best interests of the children.

There are courses available for parents to improve their capacity to meet the needs of their children, including:

1. Triple P (Positive Parenting Program);
2. Circles of Security;
3. Parenting Orders Program;
4. Behavioral change programs; and
5. First aid.

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