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The Best Interests of the Child – What it means to the court

When considering parenting orders the primary consideration for the court is to have regard to the best interests of the child.

Primary Considerations

The primary considerations of the court are to ensure:

  1. the benefit to the child of having a meaningful relationship with both of the child’s 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.

Applied practically this means that where there is a concern over safety, health, welfare or development of the children, the interests of the meaningful relationship may be overcome.

In this situation, the court can make an order where the children reside primarily with one parent rather than a share care arrangement to ensure the safety, health and development of the children.

This does not necessarily mean that the other parent will not be able to have a meaningful relationship with the child or spend time with them. The court may order supervised visits or a progressive contact regime.

Additional or ‘secondary’ considerations

In addition to considering the meaningful relationship, health, safety, health, welfare or development of the children, the court will consider, but does not have to give weight to such things as

  1. any views expressed by the child
  2. the nature of the relationship of the child with each parent and other significant people
  3. the extent to which each of the child’s parents has taken, or failed to take, the opportunity to be involved in the life of the child:
  4. the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
  5. the likely effect of any changes in the child’s circumstances, including separation from significant people in their lives;
  6. the practical difficulty and expense of a child spending time with and communicating with a parent
  7. the parents ability to provide for the child, including emotional and intellectual needs;
  8. the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child
  9. if the child is an Aboriginal child or a Torres Strait Islander child the child’s right to enjoy their culture
  10. any family violence involving the child or a member of the child’s family;
  11. whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

Ascertaining the Child’s views

Putting a child’s views into evidence should only occur if the party is aware of such unprompted views expressed by the child, or circumstances from which those views could be inferred. The court may take a negative view of a party actively exploring the views of a child, particularly a younger child.

Evidence of a child’s views would come from a report from a family consultant and sometimes from the expert evidence of a psychologist (or in very special circumstances from a psychiatrist) if the child was already receiving treatment from that professional person before proceedings were commenced.

Permission for a child to give evidence must be by the court.

In certain circumstances the court may order that a child be separately represented by an independent children’s lawyer (ICL).

Author:

Kristdel Bolog

Kristdel Bolog

Founder & Head of Family Law

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