The best interest of child is the primary consideration of the court in divorce cases. This is an important consideration because the Australian government values the welfare and well-being of children in their country. Their considerations include the child’s physical and emotional well-being, and their financial, health, cultural, moral, religious, and educational interests.
Because of its importance, Australian Family Law has Section 60CC in the Family Act 1975, which explains the best interests of the child. This legal principle includes two primary considerations and certain additional considerations, which include:
- The benefits and advantages to the child of having a meaningful and worthwhile relationship with both parents.
- The essential need to protect the child from any form of physical or psychological harm or abuse. This can include physical harm and psychological harm. Additionally, this also includes the need to protect the child from any form of exposure to neglect, abuse, or family violence.
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. So, how do we actually follow this legal principle? Let’s find out more below.
When Is The Best Interest Of The Child Considered?
All family court matters that involve children rely on the principle of the best interest of the child to make decisions and court orders. This could be for making, changing, or formulating parenting orders or plans. Moreover, even when the court needs to make decisions in custody struggles, the best interest of the child are given paramount consideration.
The Family Law Act 1975 also states that both parents share equal parental responsibility for the care of the child and the welfare of the child until the child turns 18 years old
On May 6, 2024, there were also new changes to how the courts determine parenting arrangements. The new legislation states that there is a
Best Interest of the Child – Primary Considerations
Last May 6 2024, the court will consider a new, non-hierarchical list of six general considerations and two further considerations for Aboriginal or Torres Strait Islander children. This simplified structure aims to better promote the child’s welfare and development, though the Court retains the discretion to assign the appropriate weight to any single factor. Let’s look at each of them:
- The safety of the child and each person who has care of the child. This applies whether or not a person has parental responsibility for the child.
- The opinions and views expressed by the child, such as the child’s age and the child’s understanding and maturity, are those that the court thinks are relevant.
- Each of the child’s parents’ ability, and any other relevant person’s ability, to look after the child’s developmental, psychological, emotional, and cultural needs.
- To allow the child to have a meaningful relationship with his or her parents and other people in the child’s family who are significant to the child, and to be safe to do so.
- Anything relevant to the child’s circumstances.
To summarise, a child’s relationship with their parents and anyone the child thinks is important to them is important to consider for parenting arrangements. The court will even give more weight if the child needs to be protected from an abusive or violent parent. So, they will keep a close watch on any family violence order that applies to any family member.
Should I Start With a Parenting Plan?
A parenting plan is an informal parenting arrangement that’s done out of court. You can opt for this if you think that you and your ex-partner can communicate well with it. While this may be an easy option to many, we will never know if a parent will breach its conditions, because of the plan’s absence of legal enforceability.
How Can Abuse and Family Violence Affect Parenting Plans?
Abuse and family violence are one of the biggest factors that the court considers when they want to make parenting orders. Abusive and violent parents will use all their power and manipulative tactics to twist and turn stories to gain advantage for custody. This is not in the best interests of the child because having a violent and abusive parent around them can greatly affect them.
Yes, it’s okay to start with a parenting plan. But we highly suggest taking it to court so they can apply the law to the plan and turn it into parenting orders. This way, parents can satisfy the court that their parenting arrangements are meeting the child’s best interests under all particular circumstances.
The Role of an Independent Children’s Lawyer
The court may wish to appoint an Independent Children’s Lawyer (ICL), who is responsible for representing the best interest of the child during parenting proceedings.
The ICL’s primary responsibility is to provide an opinion on what decisions would be in the best interest of the child. The ICL needs to be objective and unbiased throughout the proceedings. The ICL cannot favour either party, i.e., the mother or father, but must only be concerned about and represent the best interests of the 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.
The Best Interest of Child Strengthened With Legal Advice
As professionals of the law, we at JB Solicitors know how to create the best parenting arrangement for you. We are well aware of the best interests of the child principle and ensure that they are upheld in your arrangements.
Divorce is stressful enough, and we only want to lessen the stress of dealing with it, especially if there are children involved. What may worry you even more is whether there is family violence involving numerous people in your family. It’s not safe to tackle this alone.
So, let us help you with your parenting arrangement with our affordable mediation sessions or at court.
Contact our friendly and experienced lawyers today.
