The best interests of children
33 In general terms, it is true to say that a consideration of the best interests of children involves far more than a consideration of hardship that would be caused to those children by a particular event, such as the absence of a parent or grandparent. In most cases, a proper consideration of the best interests of children will involve attempting to form opinions about the likely future development of those children, and the effect that the presence, or absence, of the particular parent or grandparent will be likely to have on that development. This might involve the consideration of measurable matters, such as living conditions, but will also require that regard be paid to emotional needs, and to the need for guidance and example. Such matters can only be considered properly in the context of an awareness of the identity of other persons who do, and might be expected to continue to, provide for various needs of the children, and their interaction with the parent or grandparent the withdrawal of whose presence is being considered. As the High Court of Australia pointed out in M v M (1988) 166 CLR 69 at 77:
'[I]n deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare.'
34 The considerations that the Family Court of Australia is required to take into account are now set out in s 68F of the Family Law Act 1975 (Cth). They provide a good guide to the magnitude of the task.
35 This is not to say that the consideration of the impact of withdrawal of a parent or grandparent on the interests of children can, or should be, confined to the withdrawal of the positive effects of the person's presence. It is also necessary to consider any negative effects on the interests of children of the continued presence of the parent or grandparent concerned. It is easy to envisage a case in which the likelihood of future criminal behaviour or other undesirable conduct is so great that the best interests of a child will be better served by removal of the child from contact with the parent or grandparent concerned.
36 Nor can the question of the best interests of children be decided on the basis of likely future developments without regard to what has actually occurred already. It is legitimate, if not essential, in considering the best interests of children, for a decision-maker to take into account what positive and negative effects the presence of the parent or grandparent concerned has had in the lives of the children.
37 The Minister did not deal with the best interests of the appellant's young children and grandchildren in the way I have described, when he made his decision to cancel the appellant's visa. One major reason for dealing with the issue in terms of hardship lies in the fact that the material placed before the Minister in support of the appellant's contention that the visa ought not to be cancelled was substantially, if not entirely, put in terms of hardship. No serious attempt was made to provide an evaluation of the manner in which the lives of the relevant children would be likely to unfold with, and without, the appellant's presence. Instead, the material was entirely in terms of the detriment that the children and grandchildren would suffer from missing their contact with the appellant. It was not inappropriate to describe the case put as one of hardship. Given the way the case was put, it was proper for the Minister to consider the hardship caused to the children and grandchildren by the appellant's past conduct and also to consider possible hardship in the future if the appellant were to re-offend.
38 Although the reasons adopted by the Minister could have been expressed more fully, it cannot be said that they demonstrate either a failure to take into account a relevant consideration, or the taking into account of an irrelevant consideration. On the facts of the particular case, the Minister was entitled to view the matter as one of hardship, even if other cases would have to be viewed in a broader way. On the facts of the particular case, the Minister was also entitled to take into account hardship already caused to the children by the appellant's conduct, and hardship that might be caused in the future if the appellant were to re-offend.
39 This conclusion makes it unnecessary for me to deal with the question whether the best interests of the children was a relevant consideration for the Minister, in the sense identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. It was common ground in the present case that the Minister was not bound to apply his own direction, given pursuant to s 499 of the Migration Act, when making a decision personally. Whether, by choosing to apply Direction No. 21, the Minister became obliged to treat the factors to which it referred as relevant considerations is a question best left for determination on another occasion.
40 One thing can be said with certainty. The notion that the appellant had a legitimate expectation that the Minister would take into account the best interests of children could not operate to make the best interests of children into a relevant consideration in the Peko-Wallsend sense. Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 stands as authority for the proposition that, if the best interests of children are a relevant consideration in a particular case, giving rise to a legitimate expectation that they will be taken into account, and the decision-maker does not propose to take them into account, the decision-maker is obliged to inform a person likely to be affected by the decision and to provide that person with an opportunity to be heard as to why the best interests of children should be taken into account. The present case is the reverse of that situation. Here, the appellant was given notice that the Minister did propose to take into account the best interests of children, among the other considerations in Direction No. 17, and then Direction No. 21. This gave the appellant an opportunity to be heard on the issue. It did not create an obligation on the Minister to take the best interests of children into account. The only obligation arising from legitimate expectation is a procedural one. The existence, or possible existence of a legitimate expectation that something will be taken into account by a decision-maker does not impose a substantive obligation on that decision-maker to take that matter into account. It only gives rise to an obligation to take procedural steps if that consideration is not to be taken into account.
41 If, in the present case, the best interests of children were a relevant consideration, the Minister took them into account to the extent to which the nature of the material before him permitted. The appellant's real claim is that the Minister should have given more weight to that consideration, as against others, than he did. The weight to be given to the various competing considerations was a matter for the Minister. Neither the Federal Magistrates Court nor this Court can adopt a different view from that of the Minister as to the relative weight to be given to the competing considerations.