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Best interests of the child

 

IMPORTANT

As of 7 June 2012 changes have been made to the Family Law Act 1975 (Cth) in relation to family violence.  The definitions of the terms “abuse” and “family violence” have been changed as has the considerations of what the Family Court takes into account when determining the best interests of children.


Please note that these changes currently only apply in Western Australia to people who are legally married and not to people in a de facto relationship.


It is expected that the same changes will be made to the law in relation to unmarried or de facto couples in the near future.  This is subject to the law being passed through State Parliament

What does the "best interests" of children mean in family law?

The following applies if you were married or in a de facto relationship, had a short relationship or never had a relationship with the other person:

"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:

  • Protecting children from physical or psychological harm, abuse, neglect or family violence (including being exposed to those things)
  • Ensuring that children have the benefit of both of their parents having meaningful involvement in their lives to the extent possible within the best interests of the child
  • 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?

If you commence Court proceedings after 7 June 2012 and you were married then the following will apply:

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

  • 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.  The Court will give a greater weight to this need over any other consideration.
  • The benefit of the children having a meaningful relationship with both parents; and

The Court is required to put your children’s safety first before anything else.

 

Other things the Court looks at are:

  • What the children think, taking into account their age and maturity (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 has taken the opportunity to participate in making long term decisions about the children, as well as spent time with and communicated with the children
  • Whether each parent has assisted in maintaining the children
  • 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 and intellectual needs (not just financial 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 
  • If a family violence order currently applies or has applied in the past to your family, the Court will look at:
    • the nature and circumstances of that order 
    • any evidence that was put forward in the proceedings leading to the order
    • any findings that the Court made during the proceedings and
    • anything else that the Court sees as relevant
  • Whether it is better for the Court to make an order that means that the parents are less likely to come back to Court about the children again and 
  • Anything else that the Court thinks is important.

 The following will apply to you if:

  • you have current Family Court proceedings started before 7 June 2012 and you were married OR

  • you were not married:

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 and intellectual needs (not just financial 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 that means that the parents are less likely to come back to Court about the children again and 
  • Anything else that the Court thinks is important.  

How does "best interests" apply to my family?

The following applies if you were married or in a de facto relationship, had a short relationship or never had a relationship with the other person:

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

The following applies if you were married or in a de facto relationship, had a short relationship or never had a relationship with the other person:

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 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 FAQs - making arrangements for children.

 

Last reviewed: 21/06/2012

Last Modified: 21/06/2012

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.