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

"Best interests" has a particular meaning in family law when making arrangements for children. It is the most important thing to think about when making decisions about children.

The principles of children’s rights and parenting obligations are set out in Part VII (seven) of the Act. They apply to all children, whether or not their parents:

• are married or were married
• are or were living together (cohabiting)
• have never lived together. 

The court has to apply the Act to the facts of each case before making a decision about a child. The court’s main consideration is the best interests of the children.

The best interests of the children in Section 60CC

When making a parenting order, the court must look at the following primary (most important) and additional (other) considerations.

The primary considerations are 

• The benefit of children having a meaningful relationship with both of their parents.
• The need to protect children from physical and psychological harm. This includes children being physically or psychologically hurt, being neglected or seeing family violence.

The additional considerations are: 

• Children’s views – the court will look at how mature children are and how much they understand. Children do not have to express views if they do not want to.
• What kind of relationship children have with their parents and any other people significant to them, including siblings, grandparents and other relatives. 
• Whether each parent will encourage a close, ongoing relationship between the children and the other parent. 
• The likely effect of any change to where children have been living or staying. This includes separating them from either parent, siblings, grandparents and other relatives or other people important to their welfare. 
• The practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with them. This includes the right to spend time with and/or communicate with each parent.
• How much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs. 
• The maturity, sex, lifestyle and background (including culture and traditions) of the children and of each parent, and anything else about the children that the court thinks is important.
• The rights of Aboriginal or Torres Strait Islander children to enjoy their culture, including with others of that culture.

Each parent’s attitude to the children and to the responsibilities of being a parent.

• Any family violence involving the children or a member of their family. 
• Any family violence order that applies to children or a member of their family. The order must be a final order or an order that was made after being contested (challenged in court) by the other person. 
• Whether the order will mean less risk of everyone coming back to court.
• Anything else the court thinks is important.
• Section 60CC(4) says that the court must also consider how much each parent has participated in their responsibilities as parents, including:
• The extent to which each parent has been involved with decisions about major long-term issues about the children.
• How much time each parent has spent with and communicated with the children. 
• How the parents have encouraged or assisted each other to spend time with and communicate with the children.  
• Whether each parent has maintained the children or failed to do so. For example, paying child support or maintenance on time. 

In particular, the events that have happened and the circumstances that have existed, since separation. If the court is making a consent order (an order where all the people involved agree), the court may (but does not have to) consider the primary and additional considerations in deciding the children’s best interests (Section 60CC(5)).