The Family Law Act 1975 (Cth) requires a court that is making or changing parenting orders to make the best interests of the child or children its most important consideration. When parents make parenting plans, they are also expected to consider this as the most important principle.
The Family Law Act 1975 (Cth) was amended in 1995 to specifically include the term ‘best interests’ in relation to children. The principles that underlay that change are set out in the United Nations Convention on the Rights of the Child. The child’s best interests are both long-term concerns and short-term concerns and they include the consideration of the child’s physical and emotional well being and their health, financial, educational, moral, cultural and religious interests.
The Act makes it clear that both parents have responsibility for the care and welfare of their children until they are 18 and it is considered that arrangements that allow for shared responsibilities and cooperation between the parents are in the child’s best interests.
The Act gives a list of factors that the courts need to consider when deciding what is in the best interests of the child but other matters might be important in particular cases and the court can consider any facts or circumstances that they consider are important.
In 2006 the list was divided into two tiers, being the primary considerations and the additional considerations. Although the primary considerations are usually given the most weight, this won’t necessarily be the case in every matter.
The full list of factors that are looked at when considering the best interests of the child are found at section 60CC of the Act.
The primary considerations are:
- The benefit to the child of having a worthwhile and meaningful relationship with both of their parents.
- The need to protect a child from the risk that they may suffer any harm, whether physical or psychological. This includes the need to protect them from being subjected to or exposed to any form of abuse, neglect or family violence. The Act makes it clear that when the court is considering what orders it should make in a parenting matter, it must give the greatest weight to the need to protect a child from any form of harm.
The additional considerations are:
- The child’s views, taking into consideration things such as their maturity and level of understanding.
- How the child relates to their parents and to others such as grandparents and other relatives.
- If the parents are able and willing to facilitate and encourage a proper relationship between the child and the other parent.
- The effect of any change in circumstances of the child, including being separated from a parent or other person with whom they have been living.
- Any expenses and practical difficulties arising from a child spending time with and communicating with a parent.
- Each parent’s ability (and of any other relevant person) to look after the child’s needs.
- Characteristics of a child or parent that the court thinks are important, including their maturity, sex, lifestyle and background.
- Whether any proposed order might impact on the rights of an Aboriginal or Torres Strait Islander child to know and take part in their culture.
- Each parent’s attitude to the child and their parental responsibilities.
- Any domestic violence involving either the child or a family member.
- Any domestic violence orders applying to the child or a member of their family. Consideration is given to whether the order is a final order, or if the making of the order was contested.
- The benefits or otherwise of making the order that is the most unlikely to lead to future applications and hearings.
- Whether each parent has been meeting their parental responsibilities, including whether they have been involved in the decision-making about major long-term issues about the child, spending time with the child, communicating with the child, maintaining the child, and facilitating the other parent’s involvement in these aspects of the child’s life.
- If the child’s parents have separated, any events and circumstances since separation.