Best Interests of the Child: A legal perspective in Australia

What does ‘the best interests of the child’ mean? A legal perspective in Australia

If you are separating and you have children under 18 years then it is likely that as you consider the care arrangements to bring your children the routine stability and structure your children need, you will come across the concept ‘the best interests of the child’. If you are wondering about making a parenting plan or negotiating parenting consent orders, then you must understand what ‘best interests of the child’ means from a legal perspective.

This article gives you an overview of what to be aware of about ‘best interests of the child’ and introduces you to the factors the court must consider in determining ‘the best interests of the child’. Even if you successfully negotiate your parenting arrangements, you must understand the Court’s position. The Family Law Act 1975, caselaw, and the amendments of 6 May 2024 determine the details considered when making parenting arrangements.

In Australia, ‘the best interests of the child’ is a guiding principle in family law. The concept means every decision made in the context of family disputes should serve the children involved. This principle has evolved over time to adapt to societal changes and the needs of children. In Australia, historical and recent legislative changes, particularly the updates of 6 May 2024, shape this framework.

The information in this article is broad. Seek independent legal advice to discuss your specific circumstances and the parenting arrangements that are appropriate to your children. Each child’s needs are unique, each family has its own structure and character. Most importantly, your safety and the safety of your children is of greatest concern, always.

Understanding the historical context of the ‘best interests of the child’

The Family Law Act 1975 (Cth)

The Family Law Act 1975 established the Family Court of Australia and provided a comprehensive framework for resolving family disputes.  In family law matters, the Family Law Act 1975 (Cth) provides the legislative foundation, emphasising the child’s best interests. The Family Law Act 1975 outlines factors to consider in determining a child’s best interests, including:

• The benefit of the child having a meaningful relationship with both parents.
• The need to protect the child from physical or psychological harm.
• The child’s views and preferences, depending on their age and maturity.
• The nature of the child’s relationship with each parent and other significant persons.

These factors provide a balanced approach, ensuring that children’s welfare remains paramount in legal considerations.

Changes Leading Up to 6 May 2024

Recent reforms have further refined the approach to children’s best interests. Before the 6 May 2024 changes, there was a presumption that equal shared parental responsibility was in the child’s best interests unless evidence suggested otherwise. Note: this presumption no-longer exists.

The presumption of equal shared parental responsibility led to misunderstandings. Some interpreted it as a default for equal time with each parent. Criticism suggested that this approach didn’t always align with the nuanced needs of individual children, particularly in cases involving family violence.

Legislative changes from 6 May 2024

Amendments to the Family Law Act 1975 aim to address the misunderstandings and unintended consequences of the previous legislation.

Section 60B of the Family Law Act 1975 states that the Objects of Part VII of the Family Law Act are to ensure that the best interests of children are met, including by ensuring their safety; and to give effect to the Convention on the Rights of the Child, New York on 20 November 1989. Section 60CA of the Family Law Act 1975 requires the court, when deciding whether to make parenting orders to consider ‘the best interests of the child as the paramount consideration’.

Here are some of the key changes:

Clarification of Shared Parental Responsibility

The amendments clarify that shared parental responsibility is not the same as equal time-sharing. Instead, it emphasises decision-making responsibilities and clarifies that the child’s best interests are the paramount consideration in determining living arrangements. At Section 61B of the Family Law Act 1975  ,‘Parental responsibility’ means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. Section 61 C of the Family Law Act 1975  states that parents are legally responsible for their children until a parenting order or plan provides otherwise.

Increased focus on Family Violence

The concerning, detrimental impact of Family Violence on children is acknowledged and recognised. The amendments to the Family Law Act 1975, strengthen provisions to protect children from harm. Courts are now required to prioritise safety over maintaining relationships that could pose a risk. The safety of children is central to Court parenting arrangement considerations.

Greater Consideration of Children’s Views

The amendments place increased importance on considering the views and of the child. This change acknowledges children as active participants in decisions affecting their lives, fostering a deeper respect for their perspectives. The age, maturity and level of understanding the child has about the separation is considered.

Cultural and Identity Considerations

The reforms highlight the importance of preserving the child’s cultural identity. This is significant for Aboriginal and Torres Strait Islander children, ensuring that their cultural connections are respected and maintained.

Implications of the New Legislation

The legislative changes reflect a nuanced approach to ‘the best interests of the child’, aiming to address previous gaps. These reforms provide a clearer framework for judges, legal practitioners, and families, ensuring that decisions are made with a comprehensive understanding of each child’s unique circumstances.

What is the impact on the changes for legal practice?

Solicitors must take time to carefully understand the individual circumstances and needs of children whose parents are separating. Lawyers must ensure that they present a holistic view of the child’s situation, considering all relevant factors beyond parental rights. Discussions and decisions must be child centred.

Family Court’s Role

Children’s safety and well-being is the Family Court’s top priority. Judges are equipped with clearer guidelines to make informed decisions that reflect the amendment’s updated legislative priorities, so that the best interests of the child are central.

What are the current challenges and considerations?

The amendments to the Family Law Act that came into effect on 6 May 2024 are a positive step forward, however challenges remain. Changes require ongoing education, resources and training so that legal professionals and family law system stakeholders understand the changes and implement them.  It’s also important to let parents and guardians know of the amendments so that they can understand the implications of the amendments to the Family Law Act, 1975, and maintaining the best interests of the child as the top priority in thinking and decision making.

Closing thoughts

The best interests of the child remain the cornerstone of family law in Australia, guiding legal decisions to ensure the welfare and well-being of children. The legislative changes effective from 6 May 2024 mark a significant evolution in this area, reflecting a deeper understanding of the complexities involved in family dynamics.

By emphasizing safety, cultural identity, and the child’s voice, these reforms aim to create a more equitable and responsive family law system. As Australia moves forward, the focus on children’s best interests will continue to evolve, ensuring that every child has the opportunity to grow up in a safe, nurturing, and supportive environment.

The Importance of Expert Legal Advice

Engaging a skilled family lawyer specialising in family law and specifically the needs and interests of your child or children essential if you are looking to nut out parenting orders that are appropriate for each child until they turn 18 years.

An experienced family lawyer can:

1. Provide expert advice on the legal implications of your parenting arrangements, ensuring you make informed decisions at every stage of the process.
2. Represent your best interests during negotiations or mediations, working diligently to achieve age-appropriate, practical and satisfactory outcomes for your children.
3. Draft legally enforceable and compliant parenting consent orders, providing peace of mind, routine and structure.

Are you looking for compassionate, child-centred, reliable advice about your separation? Contact our expert family lawyers, right now!

Wherever you are in the process of your separation and whether or not you are heading to court, if you would like to know more about any aspect of the separation or divorce process, reach out now.  The approachable Anumis Legal Family Law Dream Team are here to help you to navigate your most difficult transitions with confidence, compassion, and empathic guidance tailored to your unique needs and circumstances. Anumis Legal provides caring, dedicated support, expert knowledge, and tailored solutions to navigate even the most complex family law disputes. Call Anumis Legal to find clarity, peace and the understanding you and your children deserve. For your complimentary chat call Anumis Legal now on 07 5455 6347 or email admin@anumis.com.au.