What are “the best interests of the child”?

If you are going through a separation or parenting dispute, you have likely heard the phrase ‘the best interests of the child’ countless times, but have you ever wondered what that really means?

In a family law setting, all parenting decisions must be made in accordance with what is deemed to be in the child’s best interests. The ‘best interests of the child’ principal was first coined under Article 3 of the United Nations Convention on the Rights of the Child, which specifies that, in all actions concerning children, the children’s best interests shall be a primary consideration.

In 1995, the Family Law Act 1975 (Cth) (the Act) was amended to include s65AA, which outlines that “a Court must have regard to the best interests of the child as the paramount consideration”.

When determining what is in the best interests of the child, the Court must consider a range of factors, known as the primary and additional considerations.

The primary considerations, which are outlined under s60CC of the Act, are:

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

Whilst the Court must consider both of the primary considerations, the Court places greater weight upon the second of the two considerations when determining the best interests of the child.

The additional considerations are far broader and include child’s emotional and physical wellbeing, their education, their health and their financial, cultural, moral and religious interests.

Yes, the Court can consider the views expressed by the child. It is important to note, however, that the weight that the Court chooses to give to the child’s wishes is dependent upon the child’s level of understanding and maturity.

Navigating a parenting dispute can be both confusing and emotionally exhausting for those experiencing the difficulties associated with a relationship and family breakdown. Our experienced family law team at Antunes Lawyers are dedicated to assisting you to achieve resolution of your family law situation as quickly, cost efficiently and with as little emotional toll on you and your loved ones as possible.

Contact one of our expert team members on (02) 9964 0499 to discuss your situation.