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. Family law considers children's best interests are met by:

• Ensuring that children have the benefit of both of their parents having meaningful involvement in their lives to the extent possible
• Protecting children from physical or psychological harm, abuse, neglect or family violence
• Ensuring children receive proper parenting to help them reach their full potential
• Ensuring parents fulfil their responsibilities for the care, welfare and development of their children.

Best interests focuses on the responsibilities of parents for their children.

How does the Family Court work out what is in the best interests of my children?

When working out what is in your children's best interests, the most important things that the court looks at are:

• The benefit of the children having a meaningful relationship with both parents; and
• The need to protect the children from physical and psychological harm, abuse, neglect or family violence that has been directed at them or that they have seen or heard.

Other things the court looks at are:

• What the children think, taking into account how mature they are (children do not have to say what they think if they do not want to)
• The relationship the children have with each of their parents and with other important people in their lives, such as grandparents or brothers and sisters
• Whether each parent will help encourage the children to have a close relationship with the other parent
• What the effect might be on the children if there was a change to where they are living, including being separated from brothers, sisters or other people important in their lives
• The practical issues for the children in spending time with and communicating with each parent, including, how much it is likely to cost
• Whether the children's parents or other people (such as grandparents) can provide for the children's needs, including their emotional needs
• Particular things about the children and the parents, such as their maturity, their lifestyle, background and culture
• The right of Aboriginal and Torres Strait Islander children to enjoy their culture, including sharing that culture with other people of that culture and the effect of any parenting orders on this
• The parents' attitudes toward their children and to their responsibilities as parents
• Any family violence involving the children or a member of the children's family
• Any family violence orders (violence restraining orders), which apply to the children or to a member of their family (the order needs to be final or have been challenged in court)
• Whether it is better for the court to make an order which means that the parents are less likely to come back to court about the children again and again
• Anything else that the court thinks is important.

What is in the best interests of my children? Should I think about it?

Each family is different. Something which is important in working out what is in one child's best interests might be different for another child.

It is not just up to the court to make decisions based on the best interests of your children. You too should think about your children's circumstances and try to make decisions based on their best interests when working out arrangements for them.

Family dispute resolution can be a useful process for helping you and the other parent work out what is in your children's best interests. For more information, see What is family dispute resolution?

Do I have to go to family dispute resolution (FDR) if I want the Family Court to work out what is in my children's best interests?

Yes, you do have to go to FDR before you start a case in the Family Court to ask the court to work out arrangements which are in your children's best interests. There are exceptions to compulsory attendance at FDR. For further information, see What is family dispute resolution? and Other ways to resolve a family law dispute.

Where can I get more information?

You can access a wide range of information on children's issues on the Legal Aid WA website, see FAQ - making arrangements for children.

Last reviewed: 01/09/2010