Best interests of children
When the Family Court decides what orders to make for a child, the most important consideration is the best interests of the child. The term "best interests of the child" has a special legal meaning and the court has to take into account a number of considerations to decide what is in a child's best interests.
Even if you do not have a current court case, the law encourages parents and other caregivers to think carefully about their child's situation and what is best for them when putting arrangements in place.
This information will help you to understand the considerations the court has to take into account to decide what is in a child's best interests.
What is the focus of family law in Australia?
As much as possible, the Family Court will ensure the best interests of children are met by focusing on the following:
- protecting children from physical or psychological harm, abuse, neglect or family violence (including being exposed to these things),
- making sure children have the benefit of both parents being meaningfully involved in their lives (regardless of whether their parents are married, separated, have never been married or have never lived together),
- making sure children have proper parenting to help them reach their full potential, and
- making sure parents meet their responsibilities for the care, welfare and development of their children.
How does the Family Court work out what is in the best interests of a child?
The court works out what arrangements are in the best interests of a child by looking at "primary" and "additional" considerations.
Primary considerations
The primary considerations the court must look at are:
- protecting children from physical or psychological harm, and from abuse, neglect or family violence - including being exposed to these things (for example, a child seeing or hearing family violence), and
- the benefit to the children of having a meaningful relationship with both of their parents.
While both primary considerations are important, the most important consideration, above anything else, is the need to protect children's safety.
Additional considerations
The additional considerations the court must look at are:
- the children's views taking into account their maturity and level of understanding (children do not have to say what their views are if they do not want to),
- the relationship the children have with each parent and other people, such as grandparents, siblings and other relatives,
- whether each parent has taken, or failed to take, the opportunity to participate in making long term decisions about the children, as well as spent time and communicated with the children,
- the likely effect of changing where the children have been living, including separation from their parents, siblings or other important people in their lives,
- any practical issues for the children in spending time with, and communicating with each parents (for example, travel costs) and whether this will affect their ability to have a relationship with that parent,
- whether the children's parents and others including grandparents or other relatives, can provide for the children's needs, including emotional and intellectual needs,
- the maturity, sex, lifestyle and background (including culture and traditions) of children and their parents,
- whether it is better to make an order which means the parents are less likely to ask for further court orders about their children,
- for Aboriginal and Torres Strait Islander children, how a proposed order might affect the right to enjoy and share their culture including their right to enjoy that culture with other people who share that culture, and
- anything else about the children the court thinks is important to consider.
Are there special considerations in cases where there have been family violence or abuse?
There are additional considerations in cases where there have been family violence or abuse. The court must look at 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 must look at:
- the nature and circumstances of that order,
- any evidence that was put forward in the proceedings for the family violence order,
- any findings that the court made during the proceedings, and
- anything else the court thinks is important.
How does the court make decisions if there is more than one child?
If there is more than one child, the court will look at what is best for each individual child, as well as looking at how arrangements would impact on other children. What is in one child's best interests might not be the same for another child - even from the same family.
Resources
Reviewed: 30 March 2022
