Best interests of the child

The central principle relating to children in family law is that any decision made by a court should be in the best interests of the child.

It has been a long-standing principle (in existence since the commencement of the Family Law Act in 1975), that a child’s welfare is to be the paramount consideration in relation to any decisions affecting the child. The Family Law Reform Act 1995 amended the Family Law Act to specifically include the term ‘best interests’. The principles underlying the amendments are derived from the United Nations Convention on the Rights of the Child (CROC). For more details about CROC see International obligations.

The Family Law Act requires the best interests of the child to be the paramount consideration when making or altering parenting orders.

Legislation passed in some states and territories concerning children, such as laws relating to care and protection of children, and also to surrogacy arrangements, also incorporate the ‘best interests’ principle.

What are the best interests of the child?

The child’s best interests include long-term and short-term welfare concerns, consideration of physical and emotional wellbeing, financial interests, moral, cultural, educational and religious and health interests.

The Family Law Act provides a list of factors that family law courts must take into account when determining the best interests of the child. The list is not exhaustive, and other matters may be considered in particular cases. The 2006 Amendment Act divided the list into two tiers: ‘primary considerations’ and ‘additional considerations’. The intended operation of the two-tier system is not explained in the Act but the courts have since stated that though the primary considerations will usually be given more weight, they will not necessarily determine the outcome, as against the additional considerations, in every case (see Mulvany v Lane [2009] FamCAFC 76; (2009) 41 Fam LR 418).