Best interests of the child – What does it mean?
As a family law lawyer, I say the phrase 'best interests of the child' a lot in my daily work. It's a critical concept in parenting matters, and people often use it as if it has a clear and agreed-upon meaning.
I might say, "The Court will decide parenting arrangements based on the best interests of the children," as if there's a simple formula to figure out where a child should live and who should make decisions for them. But what is in their best interests is not that simple. That's why there's a whole legal system to deal with these issues. It's tough to predict what a judge will decide, especially at the beginning of a case when we don't have all the facts. A judge will usually not make decisions without input from an expert who has met with the parties and the children and made recommendations. The recommendations come in the form of a report called a family report, or a Child Impact Report.
Ideally, parents can agree on their own. For a child, living with an imperfect parenting arrangement is likely better than having parents pitched against each other in court because parental conflict can be very harmful.
Because of this parents or caregivers involved often feel a lot of pressure to agree on what's best for the child. But they might not always know what's truly best because it's hard to separate their own needs from the child's needs.
Legally, parents don't have rights over their children; they have responsibilities, however this concept isn't well-known in our society. The media and common language, when we think about children, doesn’t lend itself to this understanding.
The two main principles in the Family Law Act are that children need to be safe, and that they generally benefit from having a meaningful relationship with both their parents. If it's safe for a child to spend time with both parents, the Court looks at whether an equal time arrangement can work. For young children who can't be away from their primary attachment for too long or for kids whose parents live too far apart, this might not be best. But for older kids with both parents equally involved and living close to school, it might be what the court thinks is best.
The old way of splitting time between parents, like "school with mom and weekends with dad," isn't seen as promoting a strong parent-child relationship anymore. Ideally, both parents should be involved in all aspects of a child's life.
To decide what's best for a child, the Court looks at other things too, like:
What the child thinks, but this depends on their age and understanding.
How the child gets along with each parent, grandparents, and relatives.
Whether a parent has been part of important decisions, spent time with the child, and communicated with them.
If a parent has been taking care of the child financially.
How changes in the child's life, like being separated from parents or other important people, might affect them.
How hard and expensive it is for the child to spend time with a parent.
Whether a parent can meet the child's emotional and learning needs.
Things like the child's age, gender, lifestyle, and background.
For kids from Aboriginal or Torres Strait Islander backgrounds, whether the arrangement lets them enjoy their culture and be with others who share it.
If you're facing a legal dispute involving your child, it's crucial to get advice on how to present your evidence correctly so the Court can consider all these factors. Often, people give the Court irrelevant information, which can cause delays and disappointing results for parents who genuinely care about their children.
Besides the traditional legal approach to family matters, Focus on Family offers a different way. It's a collaborative process that lets parents work out their legal issues together with the help of their independent lawyers in real time. It doesn't suit everyone, but can hold significant advantages for some. It's quicker, avoids unnecessary stress, and aims to maintain the co-parenting relationship avoiding the conflict of an adversarial approach. The key is that the parents, with their lawyers, are committed to finding a solution outside of court, and it comes with a fixed fee, so there's no incentive for dragging things out.
Book a call here: https://www.focusonfamily.com.au/book-a-consultation