What are the best interests of children? Relevant principles in child-related family law proceedings.
When applying for parenting orders, you must satisfy the court that the orders sought are in the best interests of the child. The Court must consider certain principles when making parenting orders. When considering parenting arrangements between you and your former partner, you should also take into account those principles.
The best interests of the child are paramount.
What does “best interests” mean? Parties may differ in their views, but guidance is provided in the legislation and in court decisions.
There are two main issues that the court must consider:
children generally benefit from having a meaningful relationship with both parents; and
children need to be protected from harm/family violence.
The court should consider the extent (if any) to which a parent has encouraged and supported the relationship between the child and the other parent, and whether a parent has taken steps to protect the child from harm or exposure to family violence.
Additional considerations include:
The views of the child
Generally, the older the child, the more weight is given to their wishes. Often, the court will appoint an independent lawyer for the child, to allow the voice of the child to be heard.
The court may appoint a family consultant (such as a psychologist) to ascertain the wishes of the child and consider the family circumstances. The family consultant commonly meets separately with the child and each party to the proceedings and then presents a report to the court.
The nature of the child’s relationship with each parent, and others (including grandparents)
The court may make orders that support relationships with parents and other significant people in the child’s life (such as grandparents, other relatives or carers).
Conversely the court may refuse to make orders that would detrimentally affect a relationship between a child and a parent or other significant person.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child, of any separation from either of the parents
The court should consider the impact on the child of any change to the current situation or the impact on the child of the proposed orders.
Practical difficulty and expense of a child spending time and communicating with a parent
Orders that place a significant burden on a parent or carer may not be appropriate. For example, if a party lives interstate or overseas, the court will consider the practical impact on each parent or carer, of the proposed orders.
Capacity of each parent to provide for a child
Practical considerations (such as each party’s financial situation) are relevant, especially where it is proposed that there be a change in residence for a child.
Maturity, gender, lifestyle and background of the child
The views of a teenage child on proposed orders are likely to be given significant weight, if the child has sufficient maturity to understand the implications of the proposals.
The specific circumstances of the child, such as gender, lifestyle, upbringing, or the school that they attend, may also be relevant.
Parental attitude toward child and parental responsibility
Generally, parental responsibility is a parent’s decision-making responsibility on major long-term issues. Orders that curtail or restrict parental responsibility for a child will only be made if warranted by the circumstances.
Child abuse or family violence towards a child may cause the court to determine that equal shared parental responsibility is not appropriate or that parental responsibility should be restricted in some manner.
It is relatively uncommon for parenting orders to provide that one parent have sole parental responsibility for a child.
The court will not make parenting orders that expose children to family violence or a risk of family violence.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
The court endeavours to make a “workable” order which is likely to lead to stability for the child. Where there is high conflict between parties, the court may consider it inappropriate to make an order that is likely to increase the potential for negative interaction and higher risk of conflict.