BEST INTERESTS OF THE CHILD

Australian Family Law Courts doing it for the kids.

In matters concerning children, the Family Law Courts of Australia look to the “best interests of the child” with paramount importance when reaching a decision.

Why do the Family Law Courts focus on this principle?

This principle is expounded in statute under the Family Law Act 1975. Since then, Australia’s international ratification of the United Nations Convention on the Rights of the Child 1990 prompted the Australian Parliament to cement the “best interests of the child” in legislation via the Family Law Reform Act 1995. Accordingly, the “best interests of the child” stand as the court’s primary consideration in circumstances where children are involved.

What do the “best interests of the child” encompass?

A child’s “best interests” include consideration by the court of short-term and long-term interests, physical, mental and emotional wellbeing as well as moral, cultural, religious, health, financial and educational interests.

“Primary Considerations” and “Additional Interests”

The Family Law Act 1975 sets out a non-exhaustive list of considerations the court takes into account when reaching decisions in the “best interests of the child”. Since the commencement of the Amendment Act 2006, this list is now divided into ‘primary considerations’ and ‘additional interests’. Although the legislation is silent on how this division is intended to operate, the court has indicated more weight is to be given to ‘primary considerations’. However, the court has also noted that ‘primary considerations’ alone will not overcome ‘additional considerations’ in every case and that an overall assessment of both sets of factors must be taken.

What constitutes a “Primary Consideration”

• Protection of the child from physical or psychological harm.
• The benefit of the child having a meaningful relationship with both parents.

Where there is a conflict between these two ‘primary considerations’, protection of the child will be given priority.

What constitutes an “Additional Interest”?

• The views of the child.
• The nature of the child’s relationship with each parent or other people important to them such as siblings, step-parents and grandparents.
• The effect change may have on the child. This includes separation from parents or other people important to them.
• The extent to which the parents have or have not taken the opportunity to participate in major long-term decisions relating to the child, spend time with the child or communicate with the child.
• The extent to which each parent has or has not fulfilled their obligation to maintain the child.
• The likely effect separation of the child from either of their parents, another child or another person including grandparents who they have been living with would have.
• Practical difficulties and expense a child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child’s right to maintain personal relations with both parents on a regular basis.
• The capacity of each parent and any other person providing for the needs of the child. This includes emotional and intellectual needs.
• The maturity, sex, lifestyle and background of the child or either parent.
• If the child is indigenous or a Torres Strait Islander.
• The attitude of the child and responsibilities of parenthood demonstrated by each parent.
• Any family violence involving the child or member of the child’s family.
• If a family violence order.
• Any other fact or circumstance the court considers relevant.

More information?

Child Support Agency Australia

Family court of Australia – www.familycourt.gov.au

Domestic Violence Legal Unit – 1300 650 579.

Crisis Care Unit – 1800 199 008.

Men’s Domestic Violence Helpline – 1800 000 599.

If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or contact us

*This information serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable Legal Team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.