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Family Law - Best Interest of a Child

Date: October 12, 2011

Authors: Angelita Manlangit LL.B.

LAC Lawyers are experienced family lawyers who understand the intricacies of family relationships and the issues that arise when a marriage ends. Our family lawyers will be able to guide you through all the issues involved in marriage breakdown including the best interests of the child. Our family lawyers will be able to provide you with family law advice on any issue relating to the best interests of your child/children. LAC Family Lawyers has provided the following information for you.

A separation or divorce ends the relationship between husband and wife or a de facto couple, but the parent/child relationship continues. Children of divorce need family stability and the continuity of a healthy relationship with their parents. This is why in 1995, the Family Reform Act unveiled new developments in Family Law that emphasised the best interests of the child.

Under the Family Law Act 1975 (Cth) s.60CA, the court, at all times, must consider what is in the best interests of a child when making parenting orders. When doing this the court must factor in a multitude of factors including what the Act calls primary considerations and additional considerations.

Factors the court considers when assessing the best interests of a child

Under section 60CC of the Family Law Act, determining child's best interests:

  1. Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) and (3).
  2. The primary considerations are:                       
    1. the benefit to the child of having a meaningful relationship with both of the child's parents; and
    2. the need to to protect the child from physical harm from being subjected to, or exposed to, abuse, neglect or family violence.
  3. Additional considerations are:
    1. any views expressed by the child and any factors (such as child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
    2. the nature of the relationship of the child with:
      1. each of the child's parents; and
      2. other persons (including grandparent or other relative of the child);
    3. the willingness and the ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
    4. the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
      1. either of his or her parents; or
      2. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
    5. the practical difficulty and expense of a child spending time and communicating with a parent 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;
    6. the capacity of:
      1. each of the child's parents and;
      2. any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
    7. the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
    8. if the child is an Aboriginal child or aTorres Strait Islander child:
      1. the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
      2. the likely impact any proposed parenting order under this Part will have on that right;
    9. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
    10. any family violence involving the child or a member of the child's family;
    11. any family violence order that applies to the child or a member of the child's family, if:
      1. the order is final order; or
      2. the making of the order was contested by a person;
    12. whether it would be prefereable to make the order that would be least likely to lead to the institution of further proceedings in the relation to the child;
    13. any other fact or circumstances that the court thinks is relevant.

Parenting orders issued by the court should, at all times, ascertain the considerations mentioned above. The Australian law outlines these considerations to protect the best interests of a child including their rights, welfare and development. Thus, parents undergoing separation or divorce must take these in consideration because their action affects first and foremost their children.

 

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