Best Interests of the Child – What does it mean exactly?

One of the first phrases a parent talking about care arrangements for their child following a relationship breakdown often hears from their lawyer is, “it’s all about the best interests of the child”.

But what does this really mean? And who decides what’s best for the child?

It’s very common for separated parents to have different views about what is going to be best for their child and to put different emphasis on various factors. One parent might be particularly concerned about ensuring the best health or education outcomes for their child, while the other might feel quality time with family and friends is particularly important.

Objectives

The Family Law Act 1975 sets out the following objectives to ensure that the best interests of children are met:

1. Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
2. Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
3. Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4. Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare, and development of their children.

So how do we do this practically? What if a parent is behaving in ways that are unsafe?

If parents cannot agree about what arrangements are best for their child following a separation, a Judge may need to decide what should happen. Section 60CC of the Family Law Act sets out what the court considers when deciding what is in a child’s best interests.

The primary considerations are:

1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. Greater weight is given to this consideration than the benefit of a meaningful relationship.

In addition, the Court considers:

• The child’s views and the weight that should be given to them given their age, maturity etc.
• The nature of the child’s relationship with their parents and others (such as grandparents).
• How much the parents have spent time and communicated with the child and how much they have participated in making decisions about major issues affecting the child.
• Whether they have fulfilled their obligations to maintain the child.
• The likely effect of any changes in the child’s circumstances.
• The practicalities of time and communication arrangements (e.g., distance, cost, logistics).
• The ability of the parents and others in the child’s life to provide for the child’s needs, including emotional and intellectual needs.
• The circumstances of the child and their parents.
• If the child is Aboriginal or Torres Strait Islander, their right to enjoy their culture and the likely impact a proposed order would have.
• The attitude to the child and the responsibilities of parenthood demonstrated by each parent.
• Any family violence that has happened and whether a Family Violence Order has been made.
• If it would be preferable to make an order least likely to lead to further Court proceedings.
• Any other fact or circumstance the court thinks is relevant.

Every family is different and only some of these factors may be important to deciding what’s best in your child’s case.

Sometimes considerations will be in conflict with one another, for example a parent may have engaged in behaviours that may have been detrimental to their child, such as inappropriate discipline, not being involved much when their child was younger or not having met the child’s emotional, social or cognitive needs very well, but they still want to be involved in their child’s life and the child is likely to get benefit from that involvement. It can be tricky to know how best to navigate that sort of situation in your child’s best interests.

A lawyer with experience in parenting matters can help advise on how best to manage difficult situations to create an outcome that finds an appropriate balance between potential risks and the benefits to the child of having meaningful relationships with the important people in their lives.

If you need expert legal advice, please contact our Family Law team on 03 6226 1210.

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