Parenting Orders and the Best Interests of the child
The Family Law Act 1975 in Australia requires the court to have regard to ‘the need to protect the rights of children and to promote their welfare’ in any matter with which it deals under the Act. Accordingly, when the court makes a parenting order, which may deal with a number of things such as who the child will live with, the time the child will spend with each parent etc, it must take the child’s best interest into account as a paramount consideration.
How does the court determine the best interests of the child?
The courts consider a variety of factors when determining what is in the best interests of the child. Under section 60CC of the Family Law Act, the primary considerations are:
The benefit to the child of having a meaningful relationship with both of his or her parents; and
The need to protect the child from physical or psychological harm that they may suffer as a result of being subjected to, or exposed to abuse, neglect or family violence.
Although, the court is required to balance these two considerations, subsection 2A of section 60CC makes it clear that the court must give more weight to the need to protect children from any manner of harm.
Additional considerations, also known as secondary consideration, include:
any views expressed by the child that the court thinks are relevant in light of their maturity or level of understanding
the child’s relationship with each parent and other persons, including any grandparent or other relative of the child
the extent of opportunity taken by each parent to participate in making decisions about major long-term issues, including how much time each parent spends or communicates with their children
the likely effect of any changes in the child’s circumstances, including the separation from the parents or any other person (grandparents or relatives) they are living with currently
the practical difficulty and expense of children seeing each parent
the capacity of each parent to provide for the children’s physical, emotional and intellectual needs
the right of children who are Aboriginal or Torres Strait Islander to enjoy their culture (including with others of that culture)
What is meant by “meaningful relationship”?
The Act does not contain a definition of ‘meaningful relationship’, nor does it provide any criteria to assess if the parents have a ‘meaningful involvement’ in a child’s life. In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is meant by the term “meaningful relationship”. In this case, a dispute arose between the parents when the mother informed the father that she wished to relocate with the child to Queensland. The father opposed this relocation and filed an application with the Federal Magistrates Court in which he sought orders that would allow him to spend time with the child every second weekend. The mother filed a response seeking an order that she be allowed to relocate permanently to Queensland with the child and the father be allowed to spend time with the child at such times and places as the court decided was appropriate. At first instance, the court made orders which did not permit a relocation and allowed both parties to have equal shared parental responsibility.
The mother appealed the decision and argued that the primary judge erred when he found that a meaningful relationship between father and the child would not survive if the mother relocated to Queensland. The court allowed the appeal and held that a “meaningful relationship” does not mean an “optimal relationship” and therefore, the court was not bound to make an order that would allow the child to ideally see the father more often than he had in the past. The court held that as the child already had a meaningful relationship with the father and the father did not seek equal responsibility, there was no reason why a meaningful relationship could not be maintained if the child resided with his mother in Queensland.
This case demonstrates how the court’s determination of what’s in the child's best interests doesn't always align with what you may believe to be in their best interests. Such situations can be difficult for parents to reconcile with. Therefore, it is crucial to engage the best family lawyers at an early stage who can assess your circumstances and explain how the court may determine your child’s best interests.
