The “best interests” of the child contemplate the right of a child to a meaningful relationship with both parents and the need to protect children from violence, abuse and neglect.
Determining the ‘best interest’ of a child
In balancing these primary considerations, the court is guided by a number of secondary issues. These include:
- Any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
- The nature of the relationship of the child with each of the child’s parents and other people (including any grandparent or other relative);
- The extent to which each of the child’s parents have taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child and spend time and communicate with the child; and fulfilled, or failed to fulfill, their obligations to 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 of his or her parents, or any other person with whom he or she has been living;
- The practical difficulty and expense of a child spending time 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, and any other person (including any grandparent or other relative with whom the child has been living) 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 either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant;
- If the child is an Aboriginal or Torres Strait Islander child, the right to enjoy his or her culture (including the right to enjoy that culture with other people who share that culture); and the likely impact a parenting order will have on that right;
- The attitude of the parents to the child and the responsibilities of parenthood;
- Any family violence involving the child or other family member and the circumstances of any family violence order that applies or has applied to the child or a member of the child’s family;
- Whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child;
- Any other fact or circumstance that the court thinks is relevant.
At each step of the way in resolving a dispute between parents, the Court will measure the alternatives against the “best interests of the child” principle.