Best interests of the child

When Australian courts, including the Federal Circuit and Family Court of Australia (FCFCOA), are asked to make Parenting Orders by consent (i.e., Consent Orders that deal with arrangements for children), the paramount consideration is the best interests of the child.

 

This principle is enshrined in Section 60CA of the Family Law Act 1975 (Cth). It means that all decisions about parenting arrangements must prioritise the child’s well-being and development above all else, including the wishes or interests of the parents.

Even when parents agree on arrangements and submit them as proposed Consent Orders, the Court (usually a Registrar in the first instance) must independently review these proposed orders and be satisfied that they are, in fact, in the child’s best interests before they can be made into legally binding orders.

To determine what is in a child’s best interests, the Family Law Act 1975, specifically Section 60CC, sets out a list of factors that the Court must consider. These are categorised into “primary considerations” and “additional considerations.”

Primary Considerations (Section 60CC(2)):

1. The benefit to the child of having a meaningful relationship with both of their parents: The law recognises that it is generally in a child’s best interests to have both parents involved in their lives, provided it is safe to do so.
2. The need to protect the child from any physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence: This factor is given greater weight than the benefit of a meaningful relationship if there is a conflict between the two. The safety of the child is paramount.

Additional Considerations (Section 60CC(3)):

These are numerous and allow the Court to take a holistic view of the child’s circumstances. They include:

• The views expressed by the child and any factors (which may include the child’s maturity and/or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
• The nature of the relationship of the child with each of the child’s parents and with other persons (including any grandparent or other relative of the child).
• The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
• The likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from:
  • Either of his or her parents; or
  • Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
• The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions of the child and either of the child’s parents) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
• If the child is an Aboriginal child or a Torres Strait Islander child:
  • The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
  • The likely impact any proposed parenting order under this Part will have on that right.
• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
• Any family violence involving the child or a member of the child’s family.
• If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the circumstances in which the order was made, the evidence (if any) on which the order was based, and any other relevant matter.
• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
• Any other fact or circumstance that the court thinks is relevant.

How it Applies to Consent Orders:

When parents submit an Application for Consent Orders for parenting arrangements, they are essentially stating that they believe these arrangements are in their child’s best interests. The Court reviews the application and the proposed orders against these legislative factors.

• The Court will consider the information provided by the parents in their application, which should implicitly or explicitly address how the proposed arrangements meet the child’s needs in light of these factors.
• If the Court has concerns that the proposed orders are not in the child’s best interests (e.g., if they seem to expose a child to risk, or don’t adequately consider the child’s relationship with both parents where safe), it may:
  • Ask for more information.
  • Suggest changes to the proposed orders.
  • In some cases, refuse to make the orders as proposed and list the matter for a short hearing or direct parents to family dispute resolution.

Therefore, when parents are negotiating and drafting proposed Consent Orders for their children, they should always frame their discussions and the resulting agreement around these “best interests” principles. This not only helps ensure the arrangements are genuinely good for their children but also increases the likelihood of the Court approving their agreement.