Think of the Children! Defining Best Interest

It is a fundamental principle of Family Law that the children’s best interests must be given paramount consideration in parenting matters. However, who determines the child’s best interests? Can a judge know what is in a child’s best interests better than their parents?

Well, the unfortunate truth is that family law parenting matters usually coincide with a family breakdown which means there is a lot of history and emotion involved. Parents may not realise that their priorities do not align with their child’s best interests. As such, section 60CC of the Family Law Act specifies a number of general criteria by which a child’s best interests in any given case may be determined.

How do we define a child’s best interests?

The law breaks down a child’s best interests into two categories: primary considerations and additional considerations.

Primary Considerations

With the former taking priority, the two primary considerations which a Court must consider are:

• The need to protect a child from the physical and/or psychological harm that comes from family violence, abuse or negligence;
• The benefit to a child of having a meaningful relationship with both parents. The Court interprets this on a case by case basis with reference to your individual circumstances and have determined certain things which would be considered contrary to a meaningful relationship with both parents, such as international relocation.

Secondary Considerations

Secondary considerations include:

• Any views expressed by the child, depending on the child’s level of understanding
• The nature of the relationship between the child and a particular person, such as a parent or relative.
• The extent to which a parent has taken or failed to take opportunities to be involved with the child’s life in terms of decision-making, spending time with the child and communicating with the child
• The possible effects of separation from one parent over the other
• The practical difficulty and expense of certain arrangements
• The maturity, sex, lifestyle and background of the child
• The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture if they are of Aboriginal or Torres Strait Islander background, respectively
• The attitude towards the child and parental responsibility demonstrated by each parent
• The existence of a history of family violence
• The desire to keep the child from further proceedings

Exceptions

The only time the Court is not compelled absolutely to abide by these principles is in situations where two parties are consenting, such as in approving Consent Orders. However, the Court may still consider these principles if it thinks it necessary, so there is no situation in which you can avoid them entirely.

If you have further questions, please contact us at frank@franklaw.com.au. 

This is not legal advice.