The focus of the Family Law Act in parenting matters is on “the best interests of the child” as the paramount consideration” (s60CA). This notion of “best interests” permeates all legal discussion regarding children and is spoken of as if it is a thing that can be clearly identified, and that everyone who assists parents must know what this is!
Nothing could be further from the truth. This is not a thing or even a concept. It is a way of looking at a problem not from the point of view of the parents or other adults, but from the perspective of the child. Every child is a unique individual, and every situation involving this child is different. Thus to explore their best interests is to look at their experience and try to appreciate what is happening for them and what it means for them. At that point we can stand back and ask “is this the best arrangement for this child at this time?”
The Family Law Act provides a list of factors to assist in this investigation (S60CC). These include:
- The age and maturity of the child
- Any relevant health issues
- The importance of the child having a good ongoing relationship with each of their parents and all other important people in their lives
- The importance of the child in being protected from any harm including physical, emotional, verbal, psychological
- Any wishes that the child might express
- The child’s relationships with their parents and other important people in their life
- The impact of any proposed changes on the child
- Benefits for the child from their culture or religion
The case law is full of examples where the judges have applied the long list of factors in s60CC to the acts of a particular case. Not only do they highlight which of these factors they see as the relevant ones in a particular situation, but they also weigh up the impact of each of them to balance them and arrive at an outcome. In each case this is then regarded as the “best interests” of the individual child in that case. This will be considered by the judge as the foundation for the best arrangement for that child at that time.