Cipri, Caitlin

English

Loyola University Chicago, School of Law: LAW eCommons

Children's Legal Rights Journal
Volume 33
Issue 2 Fall 2013 Article 8
1-1-2013
Around the World: Examining Australia’s Two-
Tiered Standard for Best Interests of a Child
Caitlin Cipri
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Recommended Citation
Caitlin Cipri, Around the World: Examining Australia’s Two-Tiered Standard for Best Interests of a Child, 33 CHILD. LEGAL RTS. J. 386
(2013).
Available at: http://lawecommons.luc.edu/clrj/vol33/iss2/8
386 
 
By: Caitlin Cipri 
 
The United States has a history of balancing the constitutional 
rights of the child against the constitutional rights of the parents 
when determining if it is in the child’s best interests for the state to 
remove a child from his or her family. However, in the international 
context, this is not the only standard used to determine if the state 
should intervene. Australia, in particular, relies on a two-tiered 
system with two primary considerations and supplementary 
secondary considerations. Although Australia experienced problems 
with the traditional best interest standard in the past, the relatively 
recent development of the two-tiered system signals a step in the 
right direction.  
Over thirty-five years ago, the Australian government was 
removing Aboriginal and Torres Strait Islander children based solely 
on the children’s Aboriginal or Torres Strait Island descent. 
Australia’s motivations underlying the removal are conflicted. Some 
reports claim that Australia feared a mixing of the races, while others 
vaguely claimed that it was done in the best interests of the child. The 
removal of a child from his or her family, which resulted in 
emotional and sometimes physical harm to the child, for the sake of 
the child’s “best interests,” led to Australia’s government passing 
legislation that presented a more concrete definition of exactly what 
“best interests of the child” meant. Additionally, in 1990, Australia 
became one of the first nations to ratify the United Nations 
Convention on the Rights of the Child. This ensured Australia’s 
compliance with every article of the Convention, including the 
proclamation that laws and actions affecting children should put a 
child’s best interests first so that it benefit them in the best possible 
way. Australia has since developed, through legislation, its current 
system of determining the best interests of the child.   
The factors, both primary and secondary, were incorporated 
into the Family Law Amendment Act in 2006, along with the 
presumption of equal shared parental responsibility. Under the 
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Cipri: Around the World: Examining Australia’s Two-Tiered Standard for B
Published by LAW eCommons, 2013
Children’s Legal Rights Journal    Volume 33, Fall 2013   
 
Examining Australia’s Two-Tiered Standard for  
Best Interests of a Child 
 
387 
 
presumption of equal shared parental responsibility, both parents are 
assumed to have equal and shared parental responsibility over their 
child unless a court determines, using the primary considerations 
which are supplemented by the secondary considerations, that equal 
shared parental responsibility is not in the child’s best interests.  
 In Australia, when a court is deciding whether a parent, legal 
guardian, or the state should have custody of the child, the Family 
Law Act (“Act”) requires the court to regard the best interests of the 
child as the most important consideration. 
 Under Australia’s tiered system, the two primary 
considerations for determining the best interests of a child are: 1) the 
benefit to children of meaningful relationships with both parents; and 
2) the need to protect children from physical or psychological harm, 
including being subjected or exposed to abuse, neglect, or family 
violence.  
 The first consideration is fairly ambiguous. The phrase 
“meaningful relationship” is not an absolute, defined concept, 
however, Australian case law has provided some guidance as to the 
term’s meaning. In Godfrey & Sanders, Family Court of Australia, 
Justice Kay concluded that Australia’s legislators aspired “to promote 
. . . a meaningful relationship, not an optimal one.” A meaningful 
relationship, under this rationale, could potentially mean that a child 
may have significantly limited contact with one parent, if that limited 
contact is enough to establish a meaningful relationship. Regardless 
of the existence of a meaningful relationship, it is still possible for 
other best interest factors to prevail over this primary consideration.  
 The court’s role in assessing the second consideration, the 
need to protect children from psychological and physical harm, is 
often confused with the role of investigation. However, the court’s 
role is strictly to assess the evidence presented as to the credibility of 
the allegations of violence against children. This is often a difficult 
task for the court because the evidence presented tends to be one 
person’s word against another’s. Furthermore, in Australia, “family 
violence,” is defined more broadly than “domestic violence,” its 
analogous term, in the United States. The Family Law Amendment 
Act Section 4, defines family violence as “conduct, whether actual or 
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threatened, by a person towards, or towards the property of, a 
member of that person’s family that causes that or any other member 
of the person’s family to reasonably fear for, or be reasonably 
apprehensive about, his or her personal wellbeing or safety.” This 
broad definition leads to the assumption that courts may determine 
that children must be protected from psychological harms, such as 
control and intimidation.  
In addition, the Act does not distinguish conduct between a 
party and a child, from conduct between a party and another third 
party, witnessed by a child. In Lawrence v. Abel, the Federal 
Magistrates Court held that the father’s violence toward the child’s 
mother in front of the child constituted psychological harm, and 
reasoned that the emotional consequences of witnessing violent 
behavior presented a threat to a child’s emotional development.  
 There are many secondary considerations that the court takes 
into account when determining what is in the child’s best interests, 
including, but not limited to: 1) the child’s views and factors that 
might affect those views; 2) the child’s relationship with each parent 
and other individuals, including grandparents; 3) the willingness and 
ability of each parent to facilitate and encourage a close and 
continuing relationship between the child and the other parent; 4) the 
likely effect on the child of changed circumstances; 5) the practical 
difficulty and expense of a child spending time and communicating 
with a parent; 6) each parent’s ability to provide for the child’s needs; 
7) the maturity, sex, lifestyle, and background of the child and either 
parent; 8) the attitude of each parent to the child and to the 
responsibilities of parenthood; 9) any family violence involving the 
child or a member of the child’s family; and 10) any other fact or 
circumstance that the court thinks is relevant.  
 Utilizing the primary and secondary considerations, 
Australian courts use evidence presented by the parties at trial to 
make a case-by-case determination as to what solution or placement 
would be in the best interests of the child. Similar to the United 
States, Australia focuses on ensuring a child’s psychological and 
physical well-being. What makes these two systems different is 
Australia’s noticeable lack of consideration of the constitutional 
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Examining Australia’s Two-Tiered Standard for  
Best Interests of a Child 
 
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rights of the parents and child. Australia’s constitution does not 
mention the rights of a parent, and instead leaves the best interests 
and rights of the parent and child to be dealt with through federal 
legislation and on a state-by-state basis. Unlike the United States, 
Australia’s two-tiered system focuses on whether it is in the child’s 
best interests to maintain a meaningful relationship with his or her 
parents. The addition of secondary considerations, to supplement this 
determination on a case-by-case basis, make Australia’s definition of 
“the best interests of a child” an amorphous term, individually 
tailored to every child. Australia’s case-by-case and unstructured 
system may seem uncertain when determining the best interests of 
the child, however, these new developments are a major 
improvement over Australia’s previous system.  
 
Sources:  
 Convention on the Rights of the Child, opened for signature 
Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990).  
Family Law Act 1975 pt. VII (Austl.). 
 Godfrey v Sanders [2007] FamCA 102 (Austl.).  
Lawrence v Abel [2013] FCR 28 (Austl.). 
Parenting Cases – The Best Interests of the Child, FAM. L. 
COURTS, 
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Fa
mily+Law+Principles/Parenting+cases+-
+the+best+interests+of+the+child/ (last visited Mar. 22, 2013).  
The Honourable John Faulks, Deputy Chief Justice, Family 
Court of Austl., In the Best Interests of the Children: A Perspective 
of the 2006 Amendments to the Family Law Act, Speech at the 
Shared Parental Responsibility in Australian Family Law and the 
Impact on Children Seminar (Apr. 13, 2008), available at 
http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about
/Media/Speeches/FCOA_Best_Interests_Children. 
   
  
  
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Around the World: Examining Australia’s Two-Tiered Standard for Best Interests of a Child

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Around the World: Examining Australia’s Two-Tiered Standard for Best Interests of a Child

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