‘Best interests of the child’ is one of the most frequently used phrases in family law legislation, and its meaning and interpretation is regularly explored in case law involving parenting disputes. In this blog, we look at the origins of this cornerstone principle and the factors a court considers when deciding what course of action truly serves a child’s best interests.
Where does this principle come from?
The ‘best interests of the child’ principle has its roots in Article 3 of the United Nations Convention on the Rights of the Child, which provides that in all actions concerning children — whether taken by public or private welfare institutions, courts, administrative authorities or legislative bodies — the best interests of the child must be a primary consideration. This principle was subsequently adopted into Australian family law.
What does the Family Law Act say about this principle?
The term ‘best interests’ was formally written into the Family Law Act 1975 (Cth) (the “Act”) in 1995. Before that amendment, the governing concept was known as the ‘welfare principle’.
The Act has since been updated more than once to refine how a court determines what is in a child’s best interests. Most recently, changes made by the Family Law Amendment Act 2023 (Cth) took effect on 6 May 2024, substantially simplifying section 60CC of the Act.
Previously, section 60CC divided the relevant factors into primary considerations (which the court had to weigh most heavily) and a longer list of additional considerations. That two-tier structure has now been removed. In its place, section 60CC sets out six general considerations, none of which is given automatic priority over the others — the court weighs them according to the circumstances of each case. These are:
- What arrangements would promote the safety of the child, and of each person who has care of the child, including safety from family violence, abuse, neglect or other harm;
- Any views expressed by the child;
- The developmental, psychological, emotional and cultural needs of the child;
- The capacity of each person who has, or is proposed to have, parental responsibility for the child to meet those needs;
- The benefit to the child of being able to have a relationship with their parents, and with other people significant to them, where it is safe to do so; and
- Anything else relevant to the child’s particular circumstances.
Where a child is an Aboriginal or Torres Strait Islander child, the court must also consider their right to enjoy their culture, and the likely impact of any proposed parenting order on that right.
Safety is now listed as the first of the six considerations, reflecting a deliberate legislative shift towards placing greater emphasis on a child’s safety when it is weighed against other factors, such as maintaining a relationship with each parent.
Case Example
A child’s best interests take in both long-term and short-term concerns, and can sometimes turn on factors that, at first glance, seem to sit outside the child’s immediate world. In a 2020 case, Justice Bender addressed what ‘best interests of the child’ means in practice when weighed against other considerations. Observing that the principle should be understood in light of the ‘totality’ of the parents’ and children’s lives, Her Honour stated:
“Being a committed and caring parent does not require a parent to put their entire life on hold and to abrogate their own happiness as an adult. Parents make decisions for themselves and for their children on the basis of what is in the whole family’s best interest on a regular basis. Intact families will uproot their children and move them away from school, friends and extended family for a multitude of reasons, including change of employment, health and the necessity to assist family. When those decisions are made, it does not mean that the children’s parents do not have the best interests of the children as part of their considerations but rather are looking at the totality of their and their children’s lives when deciding such a move is best for their family at that time.”
Contact Us
Parenting matters are not straightforward. Our dedicated family law solicitors are ready and willing to assist you with any concerns that you may have in relation to a family law issue. If you need assistance with a parenting matter, please do not hesitate to contact us in North Sydney on 9963 9800 or via our contact form.