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Best interests of the child

Best interests of the child

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

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:

  • 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?

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

The Family Court places greater weight on the need to protect children from harm, abuse, neglect or family violence above the benefit to children of having a meaningful relationship with both of their parents.

 

Other things the court looks at are:

  • What the children think, taking into account their maturity and level of understanding (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 their living arrangements, including being separated from siblings 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 right
  • 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.

How does "best interests" apply to my family?

 

Each family is different. 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. 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?

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?

Last reviewed: 3/02/2015

Last modified:

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.