Section 60CA of the Family Law Act 1975 (Cth) makes it absolutely clear that, when the court has to make orders dealing with children, it is the best interests of the children that is the paramount consideration. Paramount = more important than anything else. But what does ‘best interests’ mean? In this blog, we’ll take a brief look at some of the different definitions we’ve seen (the good, the bad and the ugly).
First, let’s cover some of the less desirables. Every now and then in practice, we come across some truly gob-smacking interpretations of what is in the child’s ‘best interests’. Here’s some of the more memorable examples:
“His mum’s a dead beat. I make sure I explain that to him every time he stays with me so she can’t trick him or convince him otherwise.”
“They say they want to see their father more but I think it’s just a phase. It’ll pass. If I stop them from seeing him, it’ll help them move on.”
“OK, I forgot to pick her up. But it’s only the fourth time. And it shouldn’t make any difference that it’s her birthday. She’ll have another one next year.”
“Of course the kids will be able to see their father if I move us all to Broome. They have Skype and I’m pretty sure they have 4G network up there. Plus the fella I’ve been talking to on the internet sounds like he’ll be a great father-figure and will be able to take them to weekend sport and stuff.”
“I don’t know why she’s got such a big a problem with me smacking the kids so hard. I have to make up for the fact that she doesn’t discipline them at all. They need balance.”
We wish we were joking.
Moving on, though. The parliament set out a list of factors in section 60CC to help the court determine what is in a child’s best interests. These factors effectively shape the definition of ‘best interests’ and include, among others, the following:
(a) the benefit to the child of having a meaningful relationship with both parents;
(b) the need to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence;
(c) the wishes expressed by the child (subject to their maturity and level of understanding);
(d) the nature of the child’s relationship with their parents and any other person in the child’s life such as relatives, new partners etc;
(e) the extent to which each parent has in the past taken, or failed to take, the opportunity to be involved in making decisions about the child’s education, welfare, health etc and also spend time with and communicate with the child;
(f) the extent to which each parent has in the past cared for and maintained the child and the capacity of each parent, either assisted or unassisted, to care for the child in the future;
(g) the likely effect on the child of any change to current circumstances;
(h) the practical difficulty and expense of the child spending time and communicating with each parent;
(i) if the child is of Aboriginal or Torres Strait Islander decent, the child’s right to enjoy their culture and enjoy that culture with other people who share that culture; and
(j) any other fact or circumstance that the court thinks is relevant.
That last one certainly leaves the door open for the court to exercise its own subjective discretion (which some clients have expressed concern about). That said, the specifically listed factors in section 60CC are quite wide in their coverage and, in our experience, tend to form an almost exclusive focus of the court’s decision making process of what orders will be made to reflect the best interests of the children.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.