What are the relevant factors when determining the children’s best interests in a separation?

Separation and divorce can be a confusing time for everyone. Emotions are running high and the stress can make it a tough time to make decisions, especially when it comes to parenting arrangements.

During times like this, it’s easy for parents to get caught up in negotiating the terms involved in parenting plans and parenting arrangements; but at the end of the day, the most important thing to consider is what’s in the best interests of a child.

The Family Court system defines two types of parenting arrangement considerations to factor in when it comes to a child’s best interest: primary considerations and additional considerations.

What are the primary considerations in parenting arrangements?

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

As you can see, the wellbeing and protection of the child’s immediate needs are the primary considerations the Court will consider when they are making decisions around parenting arrangements and Court Orders.

Because of this, the Court places greater emphasis on primary considerations.

What are additional considerations in parenting arrangements?

The Family Court has additional considerations that it takes into account, such as the child’s personal preferences and relationships as well as emotional, intellectual and physical needs.

As the name implies, these are additional considerations to a child’s immediate well-being – however, they’re still relevant in Parenting Agreements and Court Orders.

These can include:

  • any views and wishes of the child that the Court believes are relevant in a separation, such as a child’s maturity and level of understanding of the situation
  • the relationship between the child and each individual parent
  • the relationship between the child and other significant people in their family life (such as grandparents, step-parents or relatives)
  • each parent taking up the opportunity to: participate in making major long-term decisions about the child, spending time with the child and communicating with the child
  • each parenting fulfilling their obligations to nurture and look after the child
  • the likely effect of any changes in the child’s circumstances, including separating the child from: either parent, and any other significant person (such as grandparents, step-parents or relatives)
  • the Court must also consider whether the practical difficulty and expense will significantly impact the child’s right to maintain a relationship with both parents regularly
  • the Court will also consider the capacity of each parent or other significant person in their life, in their ability to provide for the physical, emotional and intellectual needs of the child
  • the child’s maturity, gender, lifestyle and background
  • the parents’ maturity, gender, lifestyle and background
  • if the child is of Aboriginal or Torres Strait Islander: the child’s right to enjoy their culture; and the likely impact any parenting orders will have on that right
  • the parent’s attitude to the child and responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • if there is, or has been a family violence order: the nature of the order, the circumstances in which the order was made, any evidence in those proceedings, any findings made by the Court in those proceedings; and any other relevant matter
  • making an order that would be least likely to lead to further Court proceedings; and
  • any other fact or circumstance that the Court thinks is relevant.

These factors are relevant when determining a child’s best interests in a separation.

While the Court places more weight on primary considerations, these additional considerations are still important in Court Orders and Parenting Arrangements.

Everyone’s situation is unique, which is why the Court tailors its decisions around these factors based on individual circumstances. However, the child’s best interests will always be the main focus during a separation.

If you’re unsure, seek legal advice about your parenting arrangement, separation or divorce.

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