People may wonder how the best interests of the child cases affect family law proceedings. But what are the best interests of the child or children? According to Section 60CC of the Family Law Act 1975, there are two primary considerations under the best interests principle. Children should benefit from:
- Having a meaningful relationship with both parents
- Being safe against family violence involving physical or psychological harm, and neglect
The court determines these factors in the best interests of the child cases where they prioritise the child’s welfare over his/her parents’. The child’s parents, on the other hand, will have duties and responsibilities to uphold these interests for their children, regardless of divorce or separation.
Brief History of the Child’s Best Interests
The term “best interests of the child” comes from Article 3 of the United Nations Convention on the Rights of the Child. Article 3 declares that “the best interests of the child shall be the paramount consideration in all activities involving children, whether done by:
- Public or private social welfare institutions
- Courts of law
- Administrative authorities
- Legislative bodies
Later, this principle was incorporated into the Australian Family Law Act. The Family Law Act 1975 was revised in 1995 to include the term “best interests” of children. This principle was known as the ‘welfare principle’ prior to 1995. The Family Law Act provides a number of various aspects and criteria that a judge must consider when considering what is best for a child.
Additional Considerations
Apart from primary consideration, there are additional considerations in the best interests of the child cases, such as:
- The child’s views as well as any other elements the court considers such as maturity or level of comprehension.
- The child’s relationship with his or her parents, family, and other significant people;
- The amount to which either parent has failed to participate in making long-term decisions concerning the child, to spend time with the child, or to interact with the child;
- The extent to which either parent has failed to meet their responsibilities to the child;
- Any changes in the child’s circumstances, such as separation from either parent, sibling, other children, or family (for instance, grandparents), with whom they had been living;
- The ability of each parent and any other person (for example, grandparents) to meet the emotional, physical, and intellectual requirements of the kid;
- The ability of each parent and any other person (for example, grandparents) to meet the emotional, physical, and intellectual requirements of the kid;
- The child’s characteristics (including maturity, gender, lifestyle, and history); whether the kid is an Indigenous Australian; and
- Any other factors deemed significant by the court.
Best Interests of the Child Cases Example #1: Relocation
In the case of B and B (2008), the court considered the child’s (Thomas) best interests of international relocation with the mother (Mrs B). However, the father (Mr B) wanted Thomas to stay in Western Australia. This is considered a major-long term issue in the Family Law Act 1975, that is, changing a child’s living arrangements.
Hence, this typically results in making it difficult for a child to spend time with the other parent. The parties separated when Thomas turned one year old in 1997. Mrs B failed to consult with Mr B about granting foreign citizenship to Thomas and the father only discovered this in 2007.
Despite Mrs B failing to address this matter, the courts saw that she had acted appropriately. This is because the secondary school which Thomas will attend will cater to his talents. However, the father would not have chosen the same school and the parties weren’t able to agree.
The Family Consultant’s Findings
The family consultant in this example of the best interests of the child cases found out that Thomas was an even-natured and quiet child. Thomas also had a positive relationship with both parents and was also willing to go overseas. However, when the family consultant asked the second time about the relocation, Thomas was hesitant and the family consultant found that:
- He would like to move overseas for two years and return to Perth with his father for two years
- If Thomas refused to go overseas, the mother would get upset
- He had seen his family from the mother’s side overseas and friends and would want to see the snow.
- He has been going overseas for two months every two years since he was 9 years old
- He has a good relationship with the family from the father’s side
- The new school is beneficial for Thomas and this is backed up by the mother researching the school
- There are nearby family members overseas
- He has a good relationship with his paternal grandparents
- He is old enough that it’s important to consider his wishes
- He is equally happy with staying in Western Australia or overseas.
The Court’s Decision
Thomas faces the challenge of not seeing his father and paternal grandparents on a weekly basis according to the first arrangement. However, the mother was also able to prove that she was the primary carer of Thomas in this example of the best interests of the child cases. The father ended up agreeing for Thomas to move overseas and both parties ensured that there is regular communication.
Best Interests of the Child Cases Example #2: Adoption
In the Adoption of Alice (2018) case, Alice, who is 11 years old in 2022, has been in care under her proposed adoptive parents since she was 10 months old. Alice was born in 2011 and her mother passed away in 2017. Meanwhile, Alice’s birth father does not consent to the proposed adoption but does not actively oppose the orders. The court in these proceedings must decide whether:
- The adoption is in Alice’s best interests
- The adoption considers Alice’s culture, language, religion, given names, and identity
- Changing Alice’s name is in her best interests
- The orders will bypass the birth father’s consent to the adoption
The Adoption Plan
The proposed adoptive parents did research on Alice’s biological cultural background. This includes the birth father’s Italian and Maltese heritage and the birth mother’s Irish heritage. Moreover, the proposed adoptive parents also encouraged and fostered Alice’s interest in ballet, singing, and drama, and even provided her with weekly swimming lessons. The adoption plan will also include the following:
- There is regular contact and communication between Alice, her birth father, half-siblings, and extended family
- Alice will have supervised face-to-face contact with her birth father six times a year
- The birth father will receive phone and video calls from Alice
- The birth father will receive updates, photos, and school reports from the adoptive parents
The Court’s Decision
The court in this example of the best interests of the child cases allowed Alice’s name change in order to avoid her being questioned or reminded repeatedly that she is adopted. Alice’s name change will also let her know that she belongs to a family that constantly provided her with the utmost care, stability, and sustenance.
Both the proposed adoptive parents and the birth father were able to reach an agreement on mediation about the adoption plan.
Seeking Legal Advice For Family Law Matters With JB Solicitors
The two highlighted best interests of the child cases proved that disputed parents can reach an amicable agreement if they consider what’s best for their children. Even if parties face disputes in family law proceedings, such matters are solved with mediation just like in the second case.
JB Solicitors continue to uphold and preserve the child’s best interests when it comes to child custody cases, family violence matters or any other matter relevant in the child’s life. Our family lawyers have the experience to also provide mediation to disputed parties in order to reach a resolution that favours them. We have fixed fees for all of our services so parties are able to make the most out of their time and money and achieve the best results.
Contact us today for more information about the best interests of the child cases.
