What is the best interest’s principle in family law parenting matters?

The fundamental principle in Australian family law in relation to children is that all decisions are made in accordance with the child/ren’s best interests, which is the paramount consideration in all family law parenting matters.

This paramount consideration of the best interests of the child principle assists us in drafting parenting orders and / or parenting plans by way of taking into consideration what is in the child/ren’s best interests for both short term and long term concerns with respect to their care, welfare and development. For instance, the child/ren’s physical and emotional wellbeing, health, financial, education, place to live, their name, cultural and religious upbringing.

The Family Law Act 1975 (Cth) (FLA) requires the Court to have regard to the need to protect children whilst promoting their care, welfare and development. This sentiment is apparent in section 60CC of the FLA by way of the list of factors that a Court must consider in deciding what is the child/ren’s best interests in relation to parenting orders. In 2006, the list of factors were divided into two categories, firstly ‘primary considerations’ and secondly ‘additional considerations’.

Section 60CC(2) primary considerations are as follows:

1. The benefit to a child or children of having a meaningful relationship with both of their parents. This means that it is important for parents to facilitate and promote the child/ren spending time with the other parent, so that a bond can be fostered and developed over time. It also means that each set of parents are able to be involved with the child/ren which again is of benefit to the child/ren.
2. The need to protect a child or children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This means the Court is to give greater weight in circumstances whereby the child/ren is at risk of abuse, neglect or family violence irrespective to the child/ren having a meaningful relationship with each parent. As such, if there is an ‘unacceptable risk’ to the child/ren then the Court must assess the nature of the alleged events, who made the allegations, if these allegations were genuinely believed, the unacceptable risk must be detailed, and the future effects on the child/ren must be considered and evaluated.
   
   

Section 60CC(3) additional considerations are as follows:

1. Any views expressed by the child/ren and any factors such as the child/ren’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child/ren’s views;
2. The nature of the relationship between the child/ren with each of their parents; and other persons including grandparents, or other relative of the child/ren;
3. The extent to which each of the child/ren’s parents have taken, or failed to take, the opportunity:
   (a) to participate in making decisions about major long-term issues in relation to the child/ren; and
   (b) to spend time with the child/ren; and
   (c) to communicate with the child/ren.
4. The extent to which each of the child/ren’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the child/ren;
5. The likely effect of any changes in the child’s circumstances, including the likely effect on the child/ren of any separation from:
   (a) either of his or her parents; or
   (b) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
6. The practical difficulty and expense of a child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren’s right to maintain personal relations and direct contact with both parents on a regular basis;
7. The capacity of:
   (a) Each of the child/ren’s parents; and
   (b) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
8. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
9. If the child is an Aboriginal child or a Torres Strait Islander child:
   (a) the child/ren’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
   (b) the likely impact any proposed parenting order under this Part will have on that right;
10. The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
11. Any family violence involving the child or a member of the child/ren’s family;
12. If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
    (a) the nature of the order;
    (b) the circumstances in which the order was made;
    (c) any evidence admitted in proceedings for the order;
    (d) any findings made by the court in, or in proceedings for, the order;
    (e) any other relevant matter;
13. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child/ren;
14. Any other fact or circumstance that the court thinks is relevant.

At Stone Group Lawyers, we understand and appreciate the difficulty in navigating family law matters, and our team is ready, willing and able to assist during this period.

If you wish to speak with our team in relation to your family law matter, then please call us on 1300 088 440 for a 30-minute free of charge consultation.