In Australian family law when dealing with any matter, paramount consideration is given to the best interests of the child. The Family Law Act (1975) lists the factors which must be considered when determining what is in the best interests of the child.
Importantly, in family law matters which do not directly concern the child, the best interests of the child are given at least primary consideration, if not paramount consideration.
According to Section 60CC of the Family Law Act, there are primary and secondary considerations with regards to the best interests of the child. Primary considerations include two important points, which are:
- The need to safeguard the child from any form of harm, abuse or neglect. This could be psychological or physical harm which could be caused from being subjected to family violence, abuse or neglect; and
- The benefit of the child sharing a meaningful relationship with both his/her parents.
Best interests principle as the basis of decisions made by court: Case study
The best interests of the child are considered when courts have to make decisions on parenting and custody. For example, in case any parenting order has to be made, the court will check if the order benefits the child and will only then go ahead with it.
In the case of Banning and Wylie [2009] FMCAfam 1049, the father made applications to the court requesting equal time with the children after divorce. However, the mother was concerned about the father’s work commitments presenting a hurdle.
She opposed the application for the children’s time to be divided equally between the mother and father. However, despite the father’s work commitments, the court upheld the primary consideration of the best interests of the child, i.e., the benefit to the child of having a meaningful relationship with both parents.
Ultimately, the court ordered that the time the children spent with the father will be gradually increased.
Notably, when approaching family law solicitors about parenting related disputes, yout lawyers will advise you on the course of action you should take based on this principle.
Criticisms of the best interests principle
Although the principle is internationally considered to be important, there are certain shortcomings in the way the principle serves children, as illustrated by a report. According to the arguments made in the report, the best interests principle is still very vague which is why it often results in contradictory outcomes.
The lack of consensus on the exact definition of the best interests is problematic as this means that there could be many loopholes when the courts are making a decision. The best interests principle does not outline a list of “child’s rights.” Such a list could be more structured and can provide uniformity when courts take these rights into consideration, as opposed to the best interests principle which may differ based on the perception of the decision-maker.
Conclusion
Many court proceedings rely on the best interests principle to inform decision-making processes. It is undoubtedly an important consideration. However, there is room for improvement when dealing with the principle. Often it is observed that the decision made by upholding the best interests of the child principle serves the parents’ interests more than serving the child’s interests. Similarly, the lack of a clear definition can lead to potential issues and discrepancies. Therefore, there are necessary updates which need to be made, especially with regards to preparing a more uniform and concrete “children’s rights” list.
