How are ‘the best interests of the children’ decided?

When making decisions regarding short and long term care arrangements for children, Family Court judges are required to consider what is in the best interests of the children.

But what exactly does this mean and how is it decided?

The Family Law Act specifically outlines that judges must have regard to both primary and additional considerations. The primary considerations as outlined in the Family Law Act 1975 are:

1. The benefit to the children of having meaningful relationships with both parents;

2. The need to protect children from physical or psychological harm.

In essence, before a Court will make Orders allowing a parent to spend time with the children, the Judge must first determine that there is some benefit to the child in having that relationship. In some extreme circumstances such as family violence, abuse or neglect the Court may determine that there is in fact no benefit to the child in having a relationship with their parent and the Court may decline to make Orders giving that parent time.

However, in most circumstances it is considered that children benefit from having both parents involved in their lives and from being given an opportunity to develop a bond with each parent. Once this has been established, the Court must then have regard to the additional considerations outlined in the Act in order to determine what the living arrangements for the child should be.

Each set of circumstances is unique and there is ‘no one size fits all’ solution that applies to every family. In some cases the Court will determine that it is in a child’s best interests to have equal time with both parents (say, in a week about shared care arrangement). In others the Court will determine that it is more beneficial to the child or children to live with one parent and make that their primary residence and to spend time with the other parent on a more limited basis (say, every second weekend). The additional considerations that the Court will take into account when making such a decision are as follows:

(a) the arrangements that have been in place previously and how well those arrangements have worked;

(b) the child’s relationship with each parent and other significant people in that parent’s life including their new partners, half or step brothers and sisters, grandparents and other relatives;

(c) the wishes and views of the child;

(d) the age of the child;

(e) the willingness of each parent to facilitate a bond and relationship with the other parent;

(f) the distance between the two households where each respective party lives;

(g) the maturity and lifestyle of the children as well as various other factors.

In summary, the Court will look at a wide range of factors when determining what is in the best interests of the children. No two cases are the same and it is important to seek specific legal advice with respect to your matter.

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