Best Interests Of The Child

The fundamental principle in Australian parenting law is that all decisions should be in the best interests of the children. The Family Law Act 1975 sets out the factors to be taken into consideration when assessing what is in the best interests of a child. This list of considerations was amended by the Family Law Amendment Act 2023, which will come into force on 6 May 2024. This page outlines how the best interests of a child are to be determined under the changes.

Best interests are paramount consideration

Under section 60CA of the Family Law Act, a child’s best interests are the paramount consideration when a court is deciding whether to make a particular parenting order. When a court makes parenting orders, it must decide who is to have parental responsibility for the child as well as who the child is to live with and have contact with. All of these matters must be determined with reference to what is in the child’s best interests.

Determining the best interests of a child

Under section 60CC of the Family Law Act 1975, the best interests of a child are to be determined by considering the following:

• What arrangements would promote the safety of the child and each person who has the care of the child
• Any views expressed by the child
• The developmental, psychological, emotional and cultural needs of the child
• The capacity of each person proposed to have parental responsibility to provide for those needs;
• The benefit to the child of having a relationship with their parents and other persons who are significant to the child when it is safe to do so
• Anything else that is relevant to the circumstances of the particular child.

In considering the above matters, the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence orders that apply to the child or to a member of their family.

Indigenous children

When the court is considering what is in the best interests of an Indigenous child, it must also consider the following:

• The child’s right to enjoy their Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement to maintain their connection with family, country and language and to explore the full extend of that culture and develop a positive appreciation for it; and
• The likely impact of any proposed orders on that right.

Reasons for the changes

Prior to 2024, the Family Law Act 1975 contained a longer list of considerations to be used to determine the best interests of a child. The list has now been shortened and simplified in the interest of clarity and in order to ensure that in cases involving family violence, the best interests of the child is dealt with appropriately.

Convention on the Rights of the Child

Australia is a signatory to the 1989 Convention on the Rights of the Child (CROC). The CROC sets out the civil, political, economic and social rights of children. Under the CROC, childhood is separate from adulthood and is a protected time during which a young person is allowed to grow, learn and develop. The ‘best interests’ provision of the Family Law Act seeks to give effect to the provisions of the CROC in Australia.

For advice or representation in any legal matter, please contact Armstrong Lawyers.