What does “best interests of the child” mean in family law?

What does “best interests of the child” mean in family law?

While many separating parents are able to come to an agreement between themselves about arrangements for the care of their children, for some, there can be disputes about parenting arrangements. Where parents cannot agree to parenting arrangements outside of Court, parties can make an application to the Court to make a decision. The Court is only able to make orders that are in the “best interests of the children”.

In this blog, we look at how the “best interests of the children” is considered and applied in family law matters.

Special note - changes to the Family Law Act

On 6 May 2023, significant changes to the Family Law Act 1975 (Cth) will come into effect. Please note that the information on this webpage may no longer be current.

If you are unsure about what the changes mean for you and your family, contact us for a free initial consultation: 03 8625 8957

What kinds of parenting orders can the Court make?

The most important consideration under the Family Law Act is that arrangements for children must be made in “the best interests of the children” and not the interests of the parents. The Court is not concerned with the competing interests of the parents.

The priority of each parent must be to act and behave in a way that is consistent with these best interests of the children. This may involve actively encouraging your child to spend time with your former partner. Although the relationship between you and your partner may have ended, your relationship as parents is ongoing.

Orders made by the Court cover all aspects of children’s lives and are phrased in the following simplified terms:

  • Parental responsibility – this refers to long term decisions in relation to a child’s care, welfare and development.
  • Live with - refers to who the child will live with.
  • Spend time with - refers to who the child will spend time with.
  • Communicates with - refers to communication including telephone communication.

Terms such as “custody”, “guardianship” and “access” are no longer used.

Section 60CC of the Family Law Act sets out both primary and additional considerations that the Court must deal with when determining what is in a child’s best interest.

Best interests of the child - primary considerations

The primary considerations under the Family Law Act are as follows:

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

It is important to remember that when determining what is best for the children, the Court will give greater weight to the need to protect a child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence over the benefit to a child of having a meaningful relationship with both parents.

Best interests of the child - additional considerations

The additional considerations under the Family Law Act are as follows:

  • Any views expressed by a child and any factors (such as a child’s maturity or level of understanding) that a Court thinks are relevant to the weight it should give to a child’s views.
  • The nature of the relationship of the child with:
  • 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 a 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 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 Island culture and heritage; 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 as demonstrated by each of the child’s parents.
  • Any family violence order 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 a child.
  • Any other fact or circumstances that the Court thinks is relevant.

The principles underlying these considerations are that, except when it is or would be contrary to a child's best interests:

  • children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
  • children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
  • parents should agree about the future parenting of their children; and
  • children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.

Get help from a family lawyer

It’s not unusual for parents to have different views about what it in their child’s best interests.

If you’re working through parenting arrangements after separation and you need assistance to ensure the best interests of the children are paramount, our family lawyers have significant expertise and experience in all aspects of parenting disputes.

Contacting Smith Family Law

📞 03 8625 8957

📧 [email protected]

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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Smith Family Law.

Get in touch with the author:
Jane Holford

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