One of the most important factors in determining family law matters is the consideration of the child’s best interests. The Family Law Act 1975 s.60CC outlines how the best interests of a child is determined.
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations viewed by the judge are:
- any views expressed by the child
- the nature of the relationship of the child with each of the child’s parents other relatives
- the extent to which each parent has participated in making decisions about the child’s welfare, time spent with the child and communication with the child
- whether the parent has met his or her obligations to maintain the child
- whether changing the child’s circumstances is likely to have an effect on the child
- the practicalities of the child spending time with each parent
- the capacity of each parent to provide for the needs of the child
- the right of the child to access culture and traditions of the child’s background
- the attitude of each parent to the child and the responsibilities of parenthood
- whether there has been family violence
These principles also guide family lawyers as they help families come to parenting agreements, and this can usually be completed through lawyers or mediation.
But sometimes circumstances are more complex or acrimonious, and an Independent Children’s Lawyer will be appointed to act on behalf of the children to ensure that their best interests are met. An Independent Children’s Lawyer can be appointed by the court. Usually, an Independent Children’s Lawyer will be appointed in circumstances where:
- there are allegations of abuse or neglect
- there is a high level of conflict and dispute between the parents
- the children are at an age where they may express their own views
- there are allegations of family violence
- serious mental health issues exist for the parent/s or the child
Case Study – Family Law
This case was an appeal to the Family Court of Australia – Full Court. The father, Mr Jackson and the mother, Ms Clements, had three children when they agreed to divorce. The youngest child at the time was not yet 12 months of age. Initially they agreed to share parental responsibility, and that the children would live on a week-on, week-off basis with each parent.
Then an Apprehended Violence Order was granted to Mr Jackson. Ms Clements breached the order, was arrested and charged. At this point, the three children were placed in Mr Jackson’s care. There was some concern about the emotional well-being of Ms Clements.
Ms Clements applied to the court that her children live with her and that Mr Jackson could spend time with them. Mr Jackson opposed, and submitted to the court that he wanted to go back to the original arrangement of alternate weekly care of the children.
The court made orders that Ms Clement’s time with the children be supervised and appointed her employer’s wife as the supervisor of each meeting. The court further ordered that the children live with their father and spend time with each parent on a day-on, day-off basis.
The Independent Children’s Lawyer appealed the court’s orders on the basis that:
- Neither Mr Jackson or the Independent Children’s Lawyer supported the view that Ms Clements should be supervised
- The day-on, day-off schedule of visitation was not in the children’s best interests, particularly for the youngest child
- The judge made orders over the objections of the Independent Children’s Lawyer
Justice Ainslie-Wallace found in the ruling that:
“It was accepted by the parties and it is abundantly clear that the primary judge failed to consider relevant sections of the Family Law Act 1975 (“the Act”). In particular it was contended that he failed to give any consideration to s 60CC of the Act and failed to make findings necessary to a determination of the children’s best interests. The orders which require the children, one of whom was not then one year old, to move between their parents on a daily basis, on their face are such as to drive the conclusion that his Honour could not have given proper consideration to the dictates of, at least, s 60CC in making the orders.”
The appeal court set aside the judge’s orders and allowed the case to be re-heard. There are a number of interesting factors in this case. The first is that the best interests of the children must be the fundamental principle in determining family law matters – and that even judges are bound by this principle.
Second, the advantages of the Independent Children’s Lawyer cannot be overstated. In this case, the judge’s orders were considered inappropriate by the Independent Children’s Lawyer to the extent she filed the appeal.
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