Best interests of the child

If you have separated and have children, there are a number of things you will need to make decisions about. The main questions are:

  • who will have the responsibility to make important parenting decisions for the children as they grow up, and
  • where will the children live, who will they spend time with, and who will they communicate with?

When making parenting arrangements for children to answer those questions, the family law encourages parents to make decisions that are in the best interests of their children. Even if you are not involved in a parenting case in court, you should think about your children's situation and what is best for them when negotiating arrangements with the other parent.

This information will help you to work out what is in the best interests of children when you are discussing parenting arrangements for your family.  Find out:

  • what is meant by 'best interests of the child'
  • how the Family Court works out what is in a child's best interests, and
  • how the best interests of the children applies to your family.

What does the 'best interests of children' mean?

Best interests is the most important factor in family law when making decisions regarding children. It is in a child's best interests 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.

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

The Family Court sees the need to protect children from harm, abuse, neglect or family violence as more important than having a meaningful relationship with both of their parents. This can affect what decisions the court makes about who has parental responsibility for the children and how much time they spend with each parent.

There are other factors the court looks at in deciding what is in the best interests of children:

  • What the children think, according to their age and maturity.
  • The relationship the children have with each of their parents, and with other important people in their lives, such as grandparents or siblings.
  • Whether both parents have previously been involved in making long term decisions about the children, as well as spending time with and communicating with the children.
  • Whether each parent has contributed to the costs of raising 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 important people in their lives.
  • The practical issues for the children in spending time with and communicating with each parent, including how much those arrangements are likely to cost.
  • Whether the parents or other people (such as grandparents) can provide for the children, including meeting their emotional and intellectual needs.
  • Particular things about the children and the family, such as maturity, lifestyle, family structure, background and culture. For Aboriginal and Torres Strait Islander children, the court must think about how a proposed order might affect the right to enjoy and share their culture.
  • 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 Restraining 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 those proceedings
    • any findings that the court made during those proceedings, and
    • anything else that the court sees as relevant.
  • Whether it would be better for the court to make different orders so the parents are less likely to come back to court about the children in the future.
  • Anything else that the court thinks is important.

How does this apply to my children?

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

  • Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
  • Children have a right to regularly spend time and communicate with both their parents, and other people who are important to their care, welfare and development (such as grandparents and other relatives).
  • Parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
  • Parents should agree about the future parenting of their children.
  • Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

These are a general starting point - the court must always make decisions about parenting arrangements that are in a child's best interests. The court will 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 against the child's best interests.

What is in one child's best interests might not be the same for another child – even from the same family. The court has too look at what is best for each child individually, as well as then looking how that would impact on the other children, when making a decision about parenting orders. 

Family Dispute Resolution can help separating couples discuss what is in their children's best interests.

 

Resources

Dispute Resolution at Legal Aid WA

We can help you work through family law problems without going to court, including arrangements for children and property settlements.

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.