What does the "best interests" of children mean in family law?

When a court is making a parenting order, the Family Law Act requires it to regard the best interests of the child as the most important consideration. Parents must also use this principle when making parenting plans.

Family Law Act

The Act makes clear that:

  • both parents are responsible for the care and welfare of their children until the children reach 18
  • arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

See Section 61DA of the Act for the detail.

Two tiers of consideration

In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations - primary considerations and additional considerations:

Primary considerations:

  • the benefit to children of meaningful relationships with both parents
  • the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).

Additional considerations:

  • the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
  • the child’s relationship with each parent and other people, including grandparents and other relatives
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
  • the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
  • the practical difficulty and expense of a child spending time with and communicating with a parent
  • each parent’s ability (and that of any other person) to provide for the child’s needs
  • the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
  • the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
  • the attitude of each parent to the child and to the responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • any family violence order that applies to the child or a member of the child’s family, if:
    - the order is a final order, or
    - the making of the order was contested by a person
  • whether it would be preferable to make the order that would be least likely to lead to  further court applications and hearings in relation to the child, and
  • any other fact or circumstance that the court thinks is relevant.

A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:

  • taken the opportunity to:
    - participate in decision-making about major long-term issues about the child
    - spend time with the child
  • communicate with the child, and has:
    - met their obligations to maintain the child, and
    - facilitated (or not) the other parent’s involvement in these aspects of the child’s life.

If the child’s parents have separated, a court must consider events and circumstances since the separation.

You can read the law about these topics in Section 60CA and Section 60CC of the Family Law Act 1975.

Fact sheets from the Attorney-General’s Department include information on new concepts in family law:

  • equal shared parental responsibility
  • time with parents

See also Section 64B on the law about parenting orders made by a court, and Section 65DAA which is about how a court is to consider a child spending equal time or substantial and significant time with each parent in certain circumstances. 

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Author

Alan Weiss

16th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.