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What does ‘best interests of the child’ mean?
The law looks to the “best interests of the child” when a couple with children separate. The “best interests” relate to a child’s safety - to make sure a child is protected from physical or psychological harm, abuse, neglect and family violence. If you have separated from your partner and you have children the law ensures that the plans you and your ex make are good for your children.
What is the ‘starting point’ for working out a child’s best interests?
The Family Law Act makes the best interests of the child the most important thing to consider when making a parenting order.
The law does not favour one parent over another. The Court will expect that both parents will continue to make important decisions for the child - including decisions about the child’s healthcare, religion, education (including choice of schools) and similar major decisions.
The Court will also look to see whether an equal shared care arrangement (ie equal time) is in the best interests of the child. Sometimes a 50/50 arrangement is not possible. One parent may care for the child for a majority of the time. However the Court sees that where it is safe for the child to be with each parent, that the child has “substantial and significant time” with each parent.
Substantial and significant time means that a child may understand that both their parents are involved in all aspects of their care in a variety of settings. Such settings may include activities on holiday and weekend as well as the day-to-day reality of the child’s life such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations.
How the Court works out what is in a child’s best interests
The Court looks at the following 2 things to start working out what is in a child’s best interest (these are called the “primary considerations”):
- The benefit of the child 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 and neglect or family violence.
The Court considers it most important that a child is protected and safe from harm.
What else is important to consider?
The Court will also consider:
- What the child wants
- The nature of the relationship between the child and their parents and grandparents
- How each parent has related to and been responsible for the child
- How any change in living arrangements will affect the child
- The practicalities and expense for the child to relate to each parent
- How people can provide for the child’s needs (including emotional and intellectual needs)
- The maturity, lifestyle, culture and traditions of the child and the parents
- If the child is Aboriginal or Torres Straight Islander, how the child will enjoy their culture
- The parent’s attitude to the child
- Whether there has been any family violence
- Anything related to a family violence order
- Whether an order would mean the Court isn’t needed for ongoing assistance in working out arrangements for the child
- Anything else that seems relevant.
What is the best interests of your child?
The Court will weigh up all the considerations to work out what arrangement is best for a child. The Court understands that each family is different and therefore some considerations will be more important.
For example, where the parents continue to live in the same street after separation, the expense of the children spending time with each parent might not be a major factor.
A lot of separated couples need some help and advice when working out arrangements for their child. You can contact Relationships Australia to find help with mediation.