Family Law and the child’s best interests
Mum and Dad know best?
What exactly constitutes the “best interests of the child” can be a difficult question to answer, sometimes subject to differing societal norms or attitudes. While you may have an idea about what is in your child’s best interest, the Family Law Act and the courts give the phrase ‘best interests’ a specific meaning. It is important to have a good understanding of what exactly the courts consider before engaging in any family law proceedings in relation to your children.
These considerations apply to all children. This is regardless of whether the parents are married or have ever been married or whether they have ever cohabited. It is similarly unimportant if the partners are same or opposite sex. Ultimately, it isn’t really about you as the parents. It is important to understand that the court does not engage in considerations of what is “fair”, or who has done what in the past. Arguments like these should be left out of the children’s lives entirely.
How does the Court decide the child’s best interests?
The courts consider a variety of factors when determining what is in the best interests of the child. They fall broadly into two categories:
- Primary considerations; and
- Additional considerations
We will look at each of these categories in turn.
There are only two primary considerations when determining the best interests of a child. They are:
- The benefit to the child of having a meaningful and worthwhile relationship with both of his or her parents; and
- The need to protect a child from the risk that they might suffer harm, physical or psychological. This includes protecting them from being subjected to or even exposed to family violence, neglect or any other form of abuse.
The court is required to balance these two considerations, but will give more weight to the need to protect children from harm. If the benefit of having a relationship with a parent is outweighed by the risk of that relationship causing some harm to the child, the relationship will take a back seat. It is important to understand in relation to point 1, that the right to have a meaningful relationship with both parents is a right of the child in this case, not the parent. Many parents fall into the trap of thinking about their rights to see their children without considering what is in their best interests.
The list of additional considerations is much longer than the primary considerations (at thirteen), although the list contained in the Family Law Act is non-exhaustive. Additional considerations are:
- The views of the child, often depending on the age and maturity of the child;
- The nature of the child’s relationship with each parent or other people important to them, like siblings, step-parents or grandparents;
- The effect any change may have on the child;
- The extent to which either parent has spent time with, communicated with or participated in major long-term decisions relating to the child;
- The extent to which parents have fulfilled to obligations to maintain a child;
- The likely effect of any separation from either of the parents, a sibling or other person with whom they had been living;
- Practical difficulties, including expense, of a child spending time/communicating with either parent;
- The capacity of the parent, or any other relevant person, to provide for the child’s needs, including emotional and intellectual needs;
- The maturity, gender, lifestyle and background of the child or parents;
- If the child is indigenous or Torres Strait Islander;
- Any family violence involving the child or family member. This includes the existence of any family violence orders;
As noted, this list is not exhaustive and the Court may also take into account any fact or circumstance it considers relevant.
What is in the child’s best interests doesn’t always accord with what you believe is in their best interests, or even what you feel to be fair or just. In certain cases, even where one parent has engaged in unsatisfactory behaviour like involving young children in the proceedings, that parent may end up with care of the children. This does seem unfair: after all, why should that parent be rewarded for bad behaviour? But as noted above, it isn’t necessarily about what’s fair, but what’s right for the children.
This can be difficult for parents to come to terms with. After all, all other things being equal, parents should have a right to have a relationship with their children and see them regularly. Unfortunately, circumstances can sometimes dictate outcomes that you disagree with. This is why, in parenting matters, it is important to remain focused on your children and what they need. Don’t attempt to involve them in your disputes and, where possible, remain open to compromise with the other parent.