Monday, July 04, 2011

The Best Interests of the Child

Australian family law is governed by federal legislation called the Family Law Act, enacted in 1975. This legislation sets out how children of a relationship are to be looked after by their parents and how disputes are to be resolved should the relationship break up.

The basic rule is that any court making orders under the FLA must ensure that the best interests of the child are met. Section 60CA states that:

... a court must regard the best interests of the child as the paramount consideration.

The Objects

Section 60B(1) sets out how the objects of FLA dealing with the best interests of the child are to be met. Four objects are set out:

•Ensuring children can benefit from both parents having a meaningful involvement in their lives;

•Protecting children from physical or psychological harm, from abuse, neglect or family violence;

•Making sure children get adequate/proper parenting to help them achieve full potential; and

•Making sure parents meet duties and responsibilities re care welfare and development of children.

The Principles

Section 60B(2) sets out five principles underlying these objects. These principles apply unless where they are contrary to the child's best interests. The principles are:

•Children have the right to know and be cared for by both parents. This applies regardless of whether parents are married, separated, have never married and have never lived together.

•Children have the right to spend time with and communicate with both parents on a regular basis. Children also have this right when it comes to other people significant to their care and welfare e.g. grandparents and other relatives.

•Parents have joint duties regarding care, welfare and development of children.

•Parents should agree on their children’s future parenting.

•Children have the right to enjoy their culture, including with people who share that culture.

Special Consideration for ATSI Children

When it comes to culture, Aboriginal and Torres Strait Islander children hace special rights which recognise their unique cultures. Section 60B(3) states that an ATSI child's right to enjoy his/her ATSI culture includes the right to maintain a connection with that culture. It also includes the right to have any necessary support and encouragement to explore and develope a positive appreciation of that culture.

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