- The welfare and protection of children are primary concerns for parents and are central to the family law system in Australia.
- The Family Law Act 1975 highlights the best interests of the child principle, specifically in Section 60CC. This principle, originating from the Convention on the Rights of the Child, emphasises both the child’s relationship with their parents and their safety.
- The best interests of the child principle must be considered in family law matters that may affect children, such as parenting arrangements, visitation, relocation after separation, domestic violence, property settlements, and spousal maintenance.
- Engaging with a family lawyer is advisable for matters involving children. They can provide guidance, support, and ensure children’s interests are upheld throughout the process.
Origins of the best interests of the child
While the ‘best interests of the child’ is a common phrase used in both legislation and when discussing matters that affect children, the term has not always been present in the Family Law Act.
What is now known as the best interests of the child was previously known as the welfare principle. The use of the term best interests of the child was introduced into the Act in 1995, with the term originating in the Article 3 of the Convention on the Rights of the Child.
This convention outlines the rights of children and how decisions affecting children should be made with their best interests as the main concern. Some of the key best interests of the child, according to the UN convention, is that they should be cared for and protected by parents and the government, and adults should always do what is best for the children.
Including this term in our own legislation signifies Australia’s commitment to advancing children’s rights, aligning with global conventions and standards.
What exactly are the best interests of the child?
While you may have a general idea of what the best interests of the child could be, it’s important to be aware that the best interests include a number of factors that need to be considered when making decisions that affect children.
The list of factors is extensive and in 2006, the factors were divided into two categories – primary considerations and additional considerations. We’ve included these below:
The primary considerations are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm resulting from being subjected, or exposed, to abuse, neglect or family violence.
Of these two primary considerations, the latter is given more weight when making a final decision.
There are also 13 additional considerations which cover various aspects of a child and their parents lives including lifestyles, cultures, and capacities of the parents to care for their children. You can find the full list here.
These considerations are used by the Federal Circuit and Family Court of Australia when family law proceedings involve, or the outcome affects children. These factors also need to be taken into consideration by parents and other parties, like lawyers, when making decisions and arrangements about children too.
The practical application of the best interests principles
While there are legislative guidelines surrounding the best interests of the child, when they are applied to real life situations, there can be added complexities.
These complexities are largely due to the various different types of matters that could affect children and the different ways that family law matters can be resolved. The unique circumstances of the individuals involved in the matter can also add to the complexities.
To understand this more, let’s first look at the types of family law matters that may impact children, and then the various ways in which decisions can be made.
Family law matters that can impact children
Some matters may have a more obvious impact on children than others. For example, the below family law matters clearly affect children:
- Parenting arrangements – sometimes colloquially referred to as ‘custody’ arrangements, this could include parenting plans, consent orders and parenting orders.
- Visitation arrangements – this could include visitation schedules for parents, supervised visitation, or visits with other extended family members.
- Travelling with children after separation – regarding both interstate and international travel, including holidays.
- Relocation with children after separation – if one parent may need to move out of state, city or country.
- Access to children – parents may wish to restrict the access of the other parent to protect the child’s safety.
- Parental alienation – where one parent has actively tied to turn their child against the other parent.
- Child support – parents have a duty to financially provide for their children regardless of whether they are the primary carer of the child.
- Domestic violence – if domestic or family violence is present in the relationship, this could impact parenting arrangements and access to children.
Other family law matters that could have a significant impact on children that parents may not realise, include:
- Property settlements – Separation and having dependent children can impact a parent’s ability to work and earn an income. The future needs of the parties involved in a property settlement are always considered when determining the division of assets.
- Spousal maintenance – Similarly, if parents of dependent children are unable to support themselves adequately, they may require financial support from their former spouse.
As you can see, many of the family law matters that arise from the breakdown of a relationship can have a significant impact on children.
How can family law matters be resolved?
The Australian family law system allows for flexibility. This helps to accommodate the uniqueness of every person/family’s situation. It also means that those who can resolve their matter themselves can do so, while others who may need help or guidance have options.
Below are some of the common ways that various family law matters can be resolved:
Agreements between the parties
For parenting, property, and other family law matters, parties have an option to come to an agreement together to resolve the matter between them. In some cases, this may be simple, while in others, it might require a number of discussions and negotiation.
When people do come to an agreement they have the option to formalise their agreement through consent orders (which is their agreement formalised by the Court) or financial agreements (which is a legally binding agreement that needs to be drafted correctly and the parties to the agreement must seek independent legal advice).
Parties may also choose to keep their agreement informal and private, however, this does make it difficult to legally enforce the agreement if the need arises.
When people cannot come to an agreement that resolves their family law dispute themselves or perhaps, it is not safe to do so, a third party could be engaged to facilitate the process. There are various options available, however two of the most popular options are to use the services of a family lawyer or a mediator.
A family lawyer can offer legal advice and guidance, they can draft agreements, negotiate on their client’s behalf, and represent their client in Court proceedings. The aim of the family lawyer is to find a suitable outcome that fair and in the best interests of the child.
A mediator is an impartial third party, who facilitates discussions between disputing parties. They enable communication and ensure that the concerns and wishes of all parties involved are discussed with the aim being to come to an agreement. Mediation is usually required before parties can apply to court to have parenting matters resolved.
If parties are unable to come to an agreement, even after attempting mediation, they can apply to the Federal Circuit and Family Court of Australia to have the dispute resolved for them.
Court proceedings are often considered a last resort option as they can be time consuming, costly and the process removes the control of the outcome out of the hands of the individuals involved.
When matters involving children need to be resolved by the Court, in some circumstance they may enlist the expertise of an Independent Children’s Lawyer who acts as an advocate for the best interests of the child in their unique circumstances. This helps to ensure that decisions made by the Court are aligned with the child’s best interests.
Resolution and the best interests of the child
While people have various options available to them to resolve family law disputes and there are many different kinds of family law matters that may involve or impact children, the best interests of the child principle can potentially help make finding a resolution easier.
Family law matters can be emotional, stressful and overwhelming, which can make it difficult to find a solution. However, the various considerations of the principle provide guidance for people making these types of decisions and ensure that they prioritise children.
Understanding the best interests principle is paramount for parents involved in family law disputes as it may not only help them to resolve their disputes but it also enables them to understand how matters may be determined by the Court.
Protect your child’s best interests with Australia’s leading family lawyers
If you’re involved in a family law matter or dispute that involves children, engaging with an experienced family lawyer is advisable. We can offer guidance, advice and support throughout the whole process and ensure that your child’s interests and parental responsibilities are being upheld when decisions are made impacting children.
At Unified Lawyers, we offer an experienced and compassionate team that is here for you every step of the way. Whether your family law issue involves children or not, we can provide you with the guidance and support you need to move forward with your life.
Our services are also available Australia-wide and at any time. Call us on 1300 667 461 or book a free consultation using the button below.