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Family Law and the best interests of the child principle

Mum and Dad know best…?

What exactly constitutes the “best interests of the child” can be a difficult question to answer and is subject to differing societal norms or attitudes. While you may have an idea about what is in your child’s best interest, the Family Law Act and the courts give the phrase ‘best interests’ a specific meaning.

It is important to have a good understanding of what exactly the courts consider before engaging in any family law proceedings in relation to your children. These considerations apply to all children, regardless of whether the parents are married or have ever cohabited or whether they are same or opposite sex.

Considerations 

The courts consider a variety of factors when determining what is in the best interests of the child. They fall broadly into two categories:

  • Primary considerations; and
  • Additional considerations

Primary considerations

There are only two primary considerations when determining the best interests of a child. They are:

  1. 1. The benefit to the child of having a meaningful and worthwhile relationship with both of his or her parents; and
  2. 2. The need to protect a child from the risk that they might suffer harm, physical or psychological. This includes protecting them from being subjected to or even exposed to family violence, neglect or any other form of abuse.

The court is required to balance these two considerations, but will give more weight to the need to protect children from harm. If the benefit of having a relationship with a parent is outweighed by the risk of that relationship causing some harm to the child, the relationship will take a back seat.

It is important to understand in relation to point 1, that the right to have a meaningful relationship with both parents is a right of the child in this case, not the parent. Many parents fall into the trap of thinking about their right to see their children without considering what is in their best interests.

Additional Considerations

The list of additional considerations is much longer than the primary considerations at thirteen, although the list contained in the Family Law Act is non-exhaustive. Additional considerations are:

  • • The views of the child, often depending on the age and maturity of the child;
  • • The nature of the child’s relationship with each parent or other people important to them, like siblings, step-parents or grandparents;
  • • The effect any change may have on the child;
  • • The extent to which either parent has spent time with, communicated with or participated in major long-term decisions relating to the child;
  • • The extent to which parents have fulfilled obligations to maintain a child;
  • • The likely effect of any separation from either of the parents, a sibling or other person with whom they had been living;
  • • Practical difficulties, including expense, of a child spending time/communicating with either parent;
  • • The capacity of the parent, or any other relevant person, to provide for the child’s needs, including emotional and intellectual needs;
  • • The maturity, gender, lifestyle and background of the child or parents;
  • • If the child is indigenous or Torres Strait Islander;
  • • Any family violence involving the child or family member. This includes the existence of any family violence orders;

As noted, this list is not exhaustive and the court may also take into account any fact or circumstance it considers relevant. You may notice that some of the additional considerations overlap with the primary considerations. Courts have noted that the primary considerations will not overcome the additional considerations in every case and that an overall assessment of both sets of factors must be undertaken.

Fair’s fair

What is in the best interests of the child doesn’t always accord with what you believe is in their best interests, or even what you feel to be fair or just. In certain cases, even where one parent has engaged in unsatisfactory behaviour, like involving young children in the proceedings, if the circumstances dictate it that parent may end up with care of the children. This does seem unfair: after all, why should that parent be rewarded for bad behaviour? But as noted above, it isn’t necessarily about what’s fair, but what’s right for the children.

This can be difficult for parents to come to terms with. After all, all other things being equal, parents do have a right to have a relationship with their children and see them regularly. Unfortunately, this is not the approach the courts take. This is why, in parenting matters, it is important to remain focused on your children and what they need. Don’t attempt to involve them in your disputes and, where possible, remain open to compromise with the other parent.

If you require further information or if you have any questions relating to this article, please contact the author James Lee on:
James Lee
 James Lee, Lawyer
+61 2 9762 0400
james.lee@madisonmarcus.co

Madison Marcus Law Firm produced this article. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.

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