Best Interests of the Child

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Question: Everyone keeps talking about ‘the Best Interests of the Child’ but how do you determine what is in ‘the best Interests of the Child’?!

The Family Law Act 1975 requires the court to make orders which are ‘in the best interests of the child’. The best interests of the child are paramount considerations and the act sets out a variety of factors which the court must consider when determining what is in the best interests of the child. These are set out in section 60CC of Act.

The first and primary considerations are:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations include:

  • Any views expressed by the child weighed against the child’s age and maturity;
  • The nature of the child’s relationship their parents and extended family;
  • The role each parent has played in the child’s life to date;
  • Whether each parent has fulfilled their obligation to maintain the child;
  • The likely effect of any change in the child’s circumstances and separation from a parent or other family member;
  • The practical difficulty of spending time with each parent – this is an issue where the parents do not reside within a short distance of each other;
  • The capacity of each parent to provide for the child’s emotional and intellectual needs;
  • The maturity, sex lifestyle and background of the child and parents;
  • The child’s right to enjoy their Aboriginal or Torres Strait Islander culture if applicable; and
  • Any family violence involving the child or their family members.

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Rli Samantha@2x
Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


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