The term ‘best interests of the child’ is a common phrase used in family law legislation and its meaning and interpretation is frequently discussed in case law involving parenting disputes. In this blog, we will review this ‘cornerstone’ principle and discuss factors a court will take into account when deciding what course of action is indeed in the best interests of the child.

Origin

The term ‘best interests of the child’ is a principle which originates from Article 3 of the United Nations Convention on the Rights of the Child. Article 3 states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. This principle was later inserted into the Australian Family Law Act.

The Family Law Act

In 1995, the Family Law Act 1975 (Cth) was amended to specifically include the term ‘best interests’ in relation to children. Prior to 1996, this principle was known as the ‘welfare principle’.

The Family Law Act outlines a variety of different considerations and factors which a court must consider in determining what is in a child’s best interests. These are broken up into ‘primary’ and ‘additional’ considerations.

Examples of ‘primary considerations’ include:

  • The benefit to the child of having a meaningful relationship with both of its parents; and
  • The need to protect the child from harm, including physical and psychological abuse or family violence.

Examples of ‘additional considerations’ include:

  • Views expressed by the child and any factors that the court thinks relevant to the weight it should give to the child’s views, such as maturity or level of understanding;
  • The nature of the child’s relationship with its parents, relatives and others;
  • The extent to which either parent has failed to participate in making long term decisions regarding the child, spend time with the child or communicate with the child;
  • The extent to which either parent has failed to fulfil their obligations in relation to the child;
  • The likely effect of any changes in the child’s circumstances, including separation from either parent, sibling, other child or relative (e.g. grandparents) with whom they have been living;
  • The capacity of each of the parents and any other person (e.g. grandparents) to provide for the emotional, physical and intellectual needs of the child;
  • Characteristics of the child (including maturity, gender, lifestyle, background);
  • Whether the child is an Indigenous Australian; and
  • Any other factors the court feels are relevant.

A Recent Case Example

It is important to note that a child’s best interests encompasses both long-term and short-term concerns and can sometimes purely include the consideration of factors outside of the child. For example, in a recent 2020 case, Justice Bender commented on what ‘best interests of the child’ means in reality when weighed equally against other considerations. She further highlighted that this principle should be viewed in light of the ‘totality’ of the parents and children’s lives. Her Honour stated that:

“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.”

Get Legal Advice

Navigating family law and parenting proceedings can be a confusing and emotionally exhausting task. Our dedicated family law solicitors are ready and willing to assist you with your parenting or family law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form.