The Best Interest Principle

Whenever the court makes a parenting order, it must regard the child’s best interests as the paramount consideration. This is paramountcy principle.

Section 60CC of the Family Law Act sets out two categories of consideration that the court must take into account in determining the child’s best interests. The distinction between primary and additional considerations is to both underscore the greater significance ordinarily accorded to the primary considerations and draw the court’s attention to the revised objects of the part of the Family Law Act set out in s 60B. The 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.

Circumstances may arise where the primary considerations conflict. For example, a finding of family violence or child abuse may support the inference that a child could be at risk of physical or psychological harm if the child were to spend time with the person against whom the finding was made. Where the primary considerations conflict, the court must resolve the conflict in favour of protecting the child.

The additional considerations are comprised of the 13 considerations set out in s 60CC(3) of the Act:

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
the nature of the relationship of the child with:

each of the child's parents; and
other persons (including any grandparent or other relative of the child);

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; and
to spend time with the child; and
to communicate with the child;

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
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; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

the practical difficulty and expense of a child spending time with and communicating with a parent and 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;
the capacity of:

each of the child's parents; and
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;

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;
if the child is an Aboriginal child or a Torres Strait Islander child:

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
the likely impact any proposed parenting order under this Part will have on that right;
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

any family violence involving the child or a member of the child's family;
if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter;

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
any other fact or circumstance that the court thinks is relevant.

These considerations do not form part of a hierarchy whereby some considerations are regarded as more important than others. The weight accorded to any particular consideration depends on the facts and circumstances of the case at hand.