BEST INTERESTS OF
The Family Law Act provides that the best interests of the child are the PARAMOUNT consideration for a court considering parenting orders.
The Act also says that lawyers must inform clients who are negotiating parenting arrangements that they should treat the best interests of the child as the most important issue.
How does a court determine a child’s best interests?
To determine what is in the best interests of a child, the court must firstly consider:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
The second of these considerations, is the most important.
The other matters the court will consider will depend on the circumstances of the case, but may include the following:
- Any views expressed by the child (depending on the age and maturity of the child);
- The nature of the child’s relationships with each parent and other people involved in the child’s life, such as grandparents, step-parents and siblings;
- The extent to which each parent has been involved in parenting the child;
- The extent to which each parent has fulfilled his or her obligations to financially support the child;
- The likely effect on the child of any changes in the child’s circumstances, including the effect of being separated from either parent or any other person, with whom the child has been living;
- The practical difficulty and expense of the child spending time or communicating with either parent;
- Each parent’s capacity to meet the child’s needs;
- The maturity, gender, lifestyle and background of the child and each parent and any other characteristics of the child which are relevant;
- If the child is an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her culture and share that culture with others;
- Each parent’s attitude to the responsibilities of parenthood; and
- Any family violence involving the child or a member of the child’s family.
A complete list of the matters the court must consider is found in section 60CC of the Family Law Act.
How does the court get evidence about the best interests of the child?
It is usual for both parents to provide the court with evidence about the past parenting arrangements for the child and the child’s relationships with each parent and other family members. Sometimes, other family members or friends of the family will also provide evidence. The evidence of the parents and other witnesses is given in affidavits.
However, the evidence given by parents and their supporters is often considered to be biased or partisan, so another way the court can obtain evidence is by ordering the preparation of a family report.
What is a family report?
A Family Report is a report prepared by a social worker or psychologist to assist the court to decide what arrangements will be in the best interests of the child. The report is prepared after the report writer has interviewed the child, both parents and any other persons involved in the child’s living and care arrangements (for example, step-parents, older siblings or grandparents). It contains information regarding the family, the child’s relationships with both parties, the parties’ relationships with one another and other relevant adults and children, any wishes expressed by the child and other issues relevant to the care, welfare and development of the child. It usually provides the court with recommendations about the arrangements that would be in the child’s best interests.
Other sources of evidence
Evidence relevant to the best interests of the child can also be obtained from other independent sources such as:
- Child care facilities and kindergartens;
- Police; and
- Child safety authorities.
Information from these sources is usually obtained through the issue of subpoenas.