Understanding the ‘Best Interests’ Principle in Australian Family Law: What it Means for Parents and Children
The best interests of the child are a fundamental principle in Australian family law. The guiding principle of the Family Law Act 1975 states that the court must consider “the best interests of the child as the paramount consideration” in any decisions relating to children. This means that when a parent or the Court makes any decisions relating to a child, the child’s best interests are always taken into account.
What Does The Law Say?
But what exactly constitutes the “best interests” in Australia? There is no single definition of the best interests of the child and the concept has a complex and evolving meaning. The Family Law Act 1975 does not provide a specific definition of the best interests of the child, however, it does provide some guiding principles. The Act states that the court must consider
“the benefit to the child of having a meaningful relationship with both parents”, and the
“need to protect the child from physical or psychological harm”, and the “practical difficulty and expense of the child having contact with the parents”
The best interests of the child are determined on a case–by–case basis, and the court will consider a range of factors when making its decisions. These factors include the age, maturity and needs of the child, the wishes of the child (depending on their age and maturity), the capacity of each parent to meet the needs of the child, the ability of the parents to communicate and cooperate with each other, and the impact of any family violence on the child.
Ultimately, the best interests of the child are determined by the court in each individual case. The court’s decision must be based on the child’s best interests, not the wishes or desires of the parents. When making decisions about children, the court must consider all of the relevant factors and come to a conclusion that is in the child’s best interests.
Additional considerations mentioned in the Act include:
- the child’s relationship with each parent and other persons, including any grandparent or other relative of the child;
- any views expressed by the child and related factors, such as their maturity or level of understanding;
- how much each parent is willing to participate in making decisions about major long-term issues including how much time each parent spends or communicates with their children;
- the likely effect of any changes in the child’s circumstances, including the separation from the parents or any other person (grandparents or relatives) they are living with currently;
- any family violence involving the child of a member of their family;
- any family violence orders applying to the child or a member of the child’s family.