In a divorce or family breakdown, the Court will make legal decisions for the children of the relationship with paramount regard being afforded to the child’s best interests. It isn’t always clear cut as to who the child will live with, and how much time they spend with a parent or decisions relating to their long term care. Each child’s interests will vary for each individual matter.

If you are facing Family Law proceedings, you might be wondering what does ‘in a child’s best interests’ actually mean, and what it could mean for your family moving forward.

Even if your matter does not end up in front of a Court, this idea of putting your child’s best interests first in making any decisions about your divorce and your life post-separation should always be your priority.

The Family Law Act

This is laid out in the International Convention on the Rights of the Child which Australia ratified, and also in the Family Law Act.

The Family Law Act requires the Court to have regard to the need to protect the rights of children and to promote their welfare in any matter with which it deals under the Act. The best interests of the child is to be the ‘paramount’ and most important consideration. 

Why is this important?

The aim of the Family Law Act with respect to children is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

This means making sure that:

• they are protected from physical or psychological harm, abuse, neglect and family violence
• both parents have meaningful involvement in the child's life, where possible, and
• the child receives proper parenting to help reach their full potential, and each parent meets their responsibilities as a parent.

The Family Law Act lists the factors the Court must consider in determining a child’s best interests as:

• any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes
• the nature of the child’s relationship with each parent and other persons
• the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other person with whom he or she has been living
• the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
• the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs
• the child’s maturity, sex, background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the Court thinks relevant
• the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour or by being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person
• the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
• 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
• whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
• any other fact or circumstance that the Court thinks relevant.

What does this mean?

As much as possible, the Family Court will make decisions in parenting cases based on the following principles:

1. Children have the right to know and be cared for by both their parents. 
2. Children have a right to regularly spend time and communicate with both their parents.
3. Parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
4. Parents should agree about the future parenting of their children.
5. Children have a right to enjoy their culture and to enjoy that culture with other people who share that culture.

The importance of these factors in deciding what is in a child’s best interest is to ensure that children are able to develop relationships both with their parents and with others and grow into balanced and well adjusted adults. 

Parents who contemplate these points provide a positive role in a child’s development and when making decisions relating to that development can be at times difficult, particularly when each parent has a different perspective. 

Development and encouragement of these relationships will have a positive impact on their confidence, self esteem and development of relationships with others into adulthood.

When parents cannot agree, the court needs to consider these factors from the basis of each individual child’s needs.  

These aims are a general starting point 

The Court will always endeavour to not make orders for a child to spend time with a parent, or give parental responsibility to a parent, if the Court thinks that would be inconsistent with the child's best interests.

It is important to remember that what is in one child's best interests might not be the same for another child – even from the same family. 

The Court will look at what is best for each child individually, as well as then looking at how that would impact on any other children in the relationship, when making a decision about parenting orders and care and custody for the future.

Following a separation, parents are often unable to agree on what arrangements are best for your children.  Understanding how a Court approaches these important issues can help inform your own decision making.  For expert guidance on all types of parenting matters, get in touch with us today.