Estate Litigation Canberra1 February 2017
DE FACTO RELATIONSHIPS17 November 2018
BEST INTEREST OF THE CHILD – HOW DOES THE COURT DECIDE?
Section 60CA of the Family Law Act states: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” How the Court determines the best interest is clearly set out in Section 60CC of the Act.
The Act focuses on the rights of children and the responsibilities of each parent towards their children. Best interest consideration will apply whether the parents were married, living together or have never lived together. It is important to remember that it is the child who has the rights, not the parents.
In applying the “best interest” principle the Court will consider different types of evidence before making a final order. Evidence may include psychological reports, family reports, affidavits from relevant parties and evaluations of the practicality of the proposals.
What does the Court consider?
Section 60CC outlines what the Court should consider when determining what is in the child’s best interests.
There are two primary considerations:
- The benefit to the child of having a meaningful relationship with both parents, and
- The need to protect the child from physical or psychological harm, or from being subjected or exposed to abuse, neglect or family violence.
The Act is clear that the need to protect the child is more important than the benefit of a meaningful relationship with both parents if these considerations are in conflict.
The Act then lists additional considerations that will be taken into account when deciding on the best interest of the child.
- The children’s views, taking into account how mature they are and their level of understanding of the situation. The Court will usually appoint a Family Consultant or an Independent Children’s Lawyer to convey the child’s views to the Court. Children do not have to appear in Court.
- The kind of relationship the child has with each parent, and other significant people, including siblings, grandparents or other relatives.
- The extent to which each of the parents has taken the opportunity, or failed to take the opportunity to be involved in making decisions about long-term issues regarding the child; to spend time with the child; and to communicate with the child.
- The extent to which each parent has fulfilled, or failed to fulfill, their obligation to maintain the child.
- The likely effect of change in the circumstances of where the child has been living, including separation from siblings, either parent or other relatives.
- The practicalities and expense of a child spending time with and communicating with a parent, and whether such difficulties or expense will substantially affect the child’s right to maintain a personal relationship and contact with both parents on a regular basis.
- Each parent’s capacity to provide for the child’s emotional, intellectual and physical needs. The role of grandparents or other relatives may also be considered.
- The characteristics of the child and/or the parent that the Court thinks are relevant , including maturity, background (including culture and traditions), gender and lifestyle
- If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy that culture, including enjoying it with other people who share that culture. The impact of any parenting order on that right will also be considered.
- Each parent’s attitude to the child and to the responsibility of parenthood, including if, and to what extent, each parent is able and willing to facilitate and encourage a proper relationship between the child and the other parent
- Any family violence involving the child, or existing family violence orders.
The Act specifically states that the Court must consider any other factors or circumstances that the Court may think relevant and important. This means that the court can also consider any events or circumstances since the separation.
Equal shared responsibility and best interest
The Act is clear that both parents are responsible for the care and welfare of their children till they are 18 years old. It is presumed that giving both parents equal shared parental responsibility is in the best interest of the child. However, the presumption only applies if it is appropriate in the circumstances; any one of the parents can provide evidence to the Court that it will not be in the best interest of the child to have equal shared parental responsibility. Equal shared responsibility also does not necessarily mean that both parents are entitled to spending an equal amount of time with the child.
It should be simple, but is it?
Looking at the Act the concept of “best interest” should be easy to follow and implement. However, a significant number of parents settle out of court and reach their own agreements regarding parenting issues. In some cases the children are caught in the middle of a war between parents who lost sight of their children’s best interests.
In Collu & Rinaldo (2010)FamCAFC the parties negotiated that their four-year old would travel on a monthly basis between the father in Sydney and the mother in Dubai whilst they waited for their case to be heard in Court. This went on for 14 months until the arrangement was thrown out completely by the Full Court of the Family Court. One has to ask how parents could think that this arrangement was acceptable. It may have suited the parents, but how can it be in the best interest of any child, let alone a 4-year old ?
Seek legal advice
If you find yourself in a situation where you need to consider the ‘best interest” of your children, seek the advice of an experienced family lawyer. A lawyer with knowledge and experience in this field will know the law and will guide you towards an arrangement that will be acceptable to the Court and will ultimately be in the best interest of your children.