The term “best interest of the child” plays a crucial role in family law legislations and is a factor that Court takes into account when handling cases in regards to children. To uphold Article 3 of the United Nations Conventions on the Right of the Child which states “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”, the Australian Family Law Act 1975 (Cth) was amended in 1995. The Act requires the court to consider the best interest of the child and also makes it clear that both parents have shared responsibility for the child until they are a legal adult.
In 2006, the factors that go into the Court’s consideration when deciding best interests of the child were broken into two lists – primary considerations and additional considerations. The focus of these lists is on protecting the child from psychological and physical abuse as well as making sure they have proper parenting and support.
Primary Considerations
Primary considerations are the main points that the court adheres to when acting in the child’s best interest. They are:
- Protecting the child from abuse, neglect and family violence, including exposure to such topics (e.g., seeing or hearing abuse)
- Ensuring the child has a meaningful relationship with both their parents
Additional Considerations
Only relevant additional considerations are taken in account in court, these include:
- The child’s views, taking into account their level of understanding and maturity
- The relationship they have with family members, including extended family
- The effect of change of setting for the child and the effect it will have on the child and in the case of separation, will the travel affect them
- Whether the child’s caregivers can provide for their needs and have taken the opportunity to make long-term plans for the child
- The child’s cultural background, lifestyle, sex and maturity and the importance of maintaining their connection to culture
- Anything else the Court deems appropriate
In summary, the best interest of the child is one of the main components the Court considers in Family Law and it must hold their best interest at the utmost of importance, above that of parent’s and caregiver’s. If there is more than one child, then the court considers what is best for each individual and how it would impact their relationship with each other.
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