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Best Interests Of The Child

The fundamental principle in Australian law relating to children is that all decisions and actions should be in their best interests.

Article 3 of the UN Convention on the Rights of the Child mandates that: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

Section 65AA of the Family Law Act 1975 “provides that in deciding whether to make a parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

The Act states the court must consider “the need to protect the rights of children and to promote their welfare” in any proceedings. Section 60B(1) states that the aim of the Act with respect to children is “to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”.

Assessing The Best Interests of the Child

The Act states clearly that both parents are responsible for the care and welfare of a child until the child is 18, and that there is a presumption that parenting arrangements will be made in the best interests of the child.

Factors the Federal Circuit and Family Court of Australia assesses in deciding what is in the best interests of a child are divided into primary and additional considerations by section 60 of the Act.

Primary considerations are:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional considerations are:

  • the child’s views, in line with their maturity and level of understanding;
  • the child’s relationship with each parent and others such as grandparents;
  • whether both parents have been involved in long-term decisions about the child, as well as spending time with and communicating with the child;
  • the contributions of each parent to the cost of raising the child;
  • the likely effect of any changes in the child’s circumstances, including separation from a parent, sibling or other relative;
  • the practical issues and expense arising from the child spending time and communicating with each parent;
  • the ability of a parent or other people, such as a grandparent, to provide for the child, including meeting emotional and intellectual needs;
  • whether an order might impact on the rights of an Aboriginal or Torres Strait Islander child to enjoy and share their culture;
  • characteristics of the child, such as maturity, family structure and background;
  • the parents’ attitude to the child and parental responsibilities;
  • any family violence, including family violence orders;
  • making orders that are unlikely to lead to further court applications and hearings;
  • anything else the court thinks is relevant.

The Federal Circuit and Family Court of Australia will decide parenting cases based on ideals such as:

  • a child has a right to know and be looked after by both parents, whether the parents have a relationship or not;
  • a child has a right to spend time and communicate with both parents, as well as other important care-givers such as relatives;
  • a child has a right to enjoy their culture;
  • parents should share parenting duties and responsibilities.

Equal Shared Parental Responsibility

The court will presume that equal shared parental responsibility is best for the child, unless there is evidence of child abuse or family violence. Such responsibility involves the parents making decisions about long-term issues, such as the child’s education, health, name and living arrangements.

In deciding on equal shared parental responsibility, a court will need to assess whether it is practical and in the child’s best interests for them to spend equal or “substantial and significant” time with each parent. Under the Act, time with a parent is considered “substantial and significant” if it includes weekdays, weekends and holidays with each parent, and involves meaningful engagement with the child’s daily routine. In deciding whether an arrangement is practical, the court will assess travel distance between parties, each parent’s ability to communicate, and how equal or substantial and significant time will affect the child.

Parenting orders will differ for each proceeding and the court must always make decisions that are in the best interests of the individual child; what is in the best interests of one child may not be the same for another child in the same family.

Independent Children’s Lawyer

The Act allows the court to appoint an Independent Children’s Lawyer to represent the best interests of a child in parenting proceedings. The appointment can be made by the court, or on application by parties to the proceedings, or by another person. The lawyer can make a recommendation to the court about action in the child’s best interests.

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

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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