A child’s ‘best interests’ is the paramount factor that a Court will consider when making decisions regarding custody of children in Australia. In determining the best interests of a child, the Court considers both short-term and long-term concerns. This includes the child’s physical and emotional wellbeing, his/her previous longstanding care arrangements, their financial and educational circumstances, and cultural interests.
The Court then breaks down these considerations by priority. The Court’s primary consideration in determining the child’s best interest, includes:
1. the benefit to the child of having a meaningful relationship with both of his or hers parents; and
2. the need to protect the child from any physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect, family violence, crime or drug / alcohol abuse.
After making an assessment on the above primary considerations, the Court will then consider other factors, including, but not limited to, the following:
(a) The child’s views and any relevant factors (such as the child‘s maturity or level of understanding).
(b) The child’s relationship with each of the child‘s parents and other persons (including any grandparent or other relatives of the child).
(c) The extent to which each of the child‘s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child.
(d) 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, siblings or any other person with whom he or she has been living with.
(e) The practical difficulty and expense of the child spending time with and communicating with a parent.
(f) The capacity of each of the child‘s parents to provide for the needs of the child.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child‘s parents.
As you can see, the Court considers a variety of issues in determining care arrangements which will be in the best interests for a child in Family Law matters.
In children’s matters, once an order of a Court is finalised, it may prove challenging to vary the Court order in the absence of proving ‘significant and substantial’ change in circumstances. It is, therefore, critical that you speak to a legal professional to put forward your best case in support of the time you seek for your child to spend with you.
At Clarke Hemmerling Lawyers, we have a wealth of experience dealing with complex children’s matters. Please contact us on 08 8333 2130 for a no obligation discussion.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.