The Family Court of Australia regards the children’s best interests as paramount importance, when deciding parenting orders. [1]

Children’s rights are enshrined throughout the Family Law Act. There is a correlation between the principles contained within the Declaration of the Rights of the Child and the Act.[2]For this very reason, childhood rights discourse has a direct connection with family court decision making. Many factors are taken into account by the court, not simply- the child’s ‘own’ rights; but also what rights any other person should have, in in any decision making concerning the child. [3]

The court will consider ‘interest’ protecting rights rather than; ‘choice’ protecting rights.

People can have rights, even if they do not have the capacity to effectuate their rights, others can act on their behalf,[4] to bring another’s best interests into fruition.

When we consider rights as a language of priority in modern society, Tom Langbell said, ‘to exclude rights, is to render them vulnerable to those who have rights.

Often divorce brings about a rhetoric of legal doctrine and the talk of rights. Parents under pressure often build up a resistance to the advice, insisting they have parental entitlements. Many parents appear less concerned about the best interests of the child and tend to dwell on their own self-interests.

However, when deciding ‘Parenting Orders’ the court puts aside the perverse asymmetry of the typical criticism; [5] instead the court views parenting as a privilege, and views each child’s rights on an individual basis.

Ferdinand Schoeman explains it well –

“emphasis on the rights of children, might foster thinking about the relationship between parent and child, as a quasi-contract: limited and directed toward the promotion of our public good.”

The Family Law Act (1975) of Australia, upholds the rights of children this then impresses moral obligations which bring about an awareness of the greater duties required for the child in question.[6]


[1] Child’s best interests- Section 60CA (FLA)

[2] The Convention on the Rights of the Child was entered into force on 2 September 1990 and this compliments The Universal Declaration of Human Rights (1948)

[3] The courts make their decisions based on the objects as per- Section 60 CC

[4] James Dwyer 2006

[5] James Dwyer 2006

[6] As per section 60 CC (FLA) and advisers obligations as per Section 60 D (FLA)


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