The Family Law Act 1975 (the Act) has long emphasised the well-being, safety, and developmental needs of children as the critical factors in any parenting dispute. A 2023 amendment to this legislation has further emphasised that the best interests of the child is the paramount consideration in any parenting matter before the Federal Circuit and Family Court of Australia or the Family Court of Western Australia. Understanding what is meant by this concept of best interests of the child can assist parents when making decisions about the care of their children following a separation.
Parental responsibility
When parents cannot agree privately about the care of their children, the court has the authority to make parenting orders that determine parental responsibility and contact time. Before 2024, Australian family law had a presumption of “equal and shared” parental responsibility as a starting point. This meant that, unless there was evidence to the contrary, the court was obliged to draft orders that allowed both parents to make significant decisions about their children.
By removing this presumption, the 2023 amendments lowered the threshold for an order for sole parental responsibility. With this decreased barrier, it is now easier for the court to decide that it is in a child’s best interests for one parent to exercise sole parental responsibility (that is, to be the only one making long-term decisions for the child). As such, it is more important than ever for both parents to understand what is meant by the concept of best interests.
Assessing the best interests of the child
From 6 May 2024, the Act contains six non-hierarchal “general considerations” that are used to determine what is in the best interests of a child (as well as two “additional considerations” that apply to Aboriginal and Torres Strait Islander children). The first of these considerations is concern for the child’s safety and the need to avoid harm. This is fairly straightforward: the court must prioritise parental arrangements that promote the physical well-being and safety of the child and their carers, ensuring the best protection from family violence, neglect, abuse, and other harm.
The second consideration is the child’s own views of what is best for them. Based on this consideration, the court must give weight to any opinions that the child expresses about a parental arrangement. The court is also at liberty to appoint an Independent Children’s Lawyer to ensure that the child’s views are represented in any parental order.
The third consideration is the psychological, emotional, developmental, and cultural needs of the child. The court is obliged to assess the child’s emotional and intellectual needs, focusing on the child’s maturity, lifestyle, culture, tradition, sex, and any other relevant characteristics.
The fourth consideration is the capacity of each parent (or caregiver). This consideration requires a detailed examination of each proposed caretaker’s ability and willingness to meet the child’s needs, including their capacity to seek out support if necessary. This readiness to seek assistance is particularly relevant in cases where the proposed caretaker has a physical or mental disability that would impede their ability to care for the child.
The fifth consideration is the benefit the child will derive from maintaining relationships with both parents, but only in so far as it is safe for them to do so. This consideration also requires the court to consider the benefit to the child of maintaining relationships with any other significant individuals in their lives, such as grandparents. It is notable that the court is only required to consider the importance of maintaining these relationships if it is safe for the child to continue contact with the individuals.
The final consideration allows the court to consider any other factor that is deemed relevant to an assessment of the best interests of the child.
Aboriginal or Torres Strait Islander children
When it comes to cases involving Aboriginal or Torres Strait Islander children, the court must give weight to two further considerations when determining best interests. First, the court must bear in mind the child’s right to enjoy their own culture, allowing them to connect and maintain links with their family, culture, community, country, and language. Second, the court must consider the likely impact of any proposed parenting order, and how it respects and preserves the child’s cultural identity and connections. The Act also expands the definition of “member of the family” to be inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship. This is intended to account for circumstances when the best interests of the child would be met by contact with someone who does not conform to the more limited European definition of family.
A fundamental principle of Australian law is that all decisions in parenting proceedings should be made in the best interests of the child. The family law team at Taylor Rose can provide clarification on how that impacts your situation, and provide any legal advice and representation you require. Please contact our experienced solicitors on 1800 491 469.
