In family law cases that involve children, the ‘best interest of the child’ is the governing principle upheld by family courts while making major decisions.
In considering the best interest of the child – both short-term and long-term concerns are taken into account. These include the child’s physical and emotional well-being, and their financial, health, cultural, moral, religious, and educational interests.
Under Section 60CC of the Family Act 1975, the best interest of the child includes two primary considerations and certain additional considerations. This division into two tiers was made in 2006, and the primary considerations are given more weight.
However, this can vary from case to case. Family courts always deal with matters individually, and in some circumstances, additional considerations can be given more importance.
When Is The Best Interest Of The Child Considered?
All family court matters that involve children rely on the principle of best interest of the child to make decisions and court orders. This could be for making parenting orders, changing parenting orders, or formulating parenting plans. Moreover, even when the court needs to make decisions in custody struggles, the best interest of the child is given paramount consideration.
The Family Law Act 1975 states that both parents share equal parental responsibility for the care of the child, and welfare of the child until the child turns 18 years old.
This arrangement of shared responsibility and cooperation between parents is specially made keeping in mind the best interest of the child.
Best Interest Of Child – Primary Considerations
There are two primary considerations as listed in the Family Law Act 1975. These include: –
- The benefits and advantages to the child, in having a meaningful and worthwhile relationship with both their parents.
- The essential need to protect the child from any form of harm or abuse. This can include physical harm, psychological harm. Additionally, this also includes the need to protect the child from any form of exposure to neglect, abuse, or family violence.
The Act explicitly states that the greatest weight must be given to the need to protect the child from any form of harm, abuse, or neglect.
Best Interest Of Child – Additional Considerations
The Australian law also takes into account additional factors or considerations when determining the best interest of the child. These include: –
- The kind of relationship the child shares with his/her parents, and other members of the family, including grandparents. The court considers how the child relates with his/her various family members.
- The opinions and views expressed by the child – such as the child’s level of understanding, and maturity – which the court thinks are relevant.
- The effect of any change in circumstances of the child, which includes being separated from a parent, or any other person the child has been living with
- Any additional expenses, or practical difficulties arising from a child communicating with his/her parents or spending time with his/her parents.
- Each parent’s ability, and any other relevant person’s ability to look after the child’s needs.
- Each parent’s attitude and behaviour towards the child, and their parental responsibilities.
- Any characteristics of the child or parent that the court thinks might be important to consider. This includes – lifestyle, sex, maturity, and background
- Whether a proposed order might impact on the rights of an Aboriginal or Torres Strait Islander child to know his/her culture and take part in his/her culture
- Any instances of domestic violence in the family, which involves either the child or a family member
- Any domestic violence orders applying to the child, or any member of the family. In this case, consideration is given to whether the order is the final order, or if the making of the order was contested.
- Whether each parent has been meeting their parental responsibility – including their involvement in the child’s life in instances involving decision-making about major long-term issues affecting the child, if they are spending sufficient time with the child, if they are communicating with the child, if they are maintaining the child and taking care of the child, and facilitating the other parents’ involvement in all aspects of the child’s life.
- In cases where the child’s parents have separated, any events and circumstances after the separation of the child’s parents.
- If the parents are able to, and willing to encourage and facilitate a proper relationship with between the child and the other parent.
- The benefits, or otherwise, of making the order that is most unlikely to lead to future hearings or future applications.
Independent Children’s Lawyer For The Best Interest Of Child
The court may wish to appoint an Independent Children’s Lawyer (ICL), who is responsible for representing the best interest of child during parenting proceedings.
The ICL’s primary responsibility is to provide an opinion on what decisions would be in the best interest of child. The ICL needs to be objective, and unbiased throughout the proceeding. The ICL cannot favour either party, i.e., the mother or father, but must only be concerned about, and represent the best interest of child.
During court proceedings, in cases where an ICL has been appointed, the ICL will be present in all court hearings.
Either the court can appoint an ICL by itself, or an application to appoint an ICL can be made by the child, a party to the proceeding, or any other person.
Seek Legal Guidance From JB Solicitors
If you are involved in parenting proceedings, which require attending court sessions, we understand how stressful this could be for you.
Family law is complex and involves many aspects. The experienced lawyers at JB Solicitors can help with all family law matters. Understanding the best interest of child is essential in all parenting matters.
Contact our friendly and experienced lawyers today.