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 The best interests of the child |
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Author:
Watts McCray Lawyers
In 1995 the Family Law Reform Act introduced some significant new developments in Family Law in Australia. One of those significant new developments was the introduction of 'parental responsibility' as opposed to 'parental rights' and the new emphasis on the best interest of the child as the paramount consideration in all matters involving the parenting of children.
This new development is in keeping with Australia's obligations under the United Nations Convention on the Rights of the Child to which Australia is a signatory. Specifically the convention provides:
Article 9
"States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine ... that such separation is necessary for the best interests of the child",
and,
"States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests".
How then do the courts determine what is in the best interests of every child?
The answer is by painstakingly assessing the individual circumstances of each and every case and the individual needs of each and every child. The assessment undertaken by the courts includes a consideration of the following:
1. any wishes expressed by the child weighed against the child's maturity and level of understanding;
2. the nature of the child's relationship with each of the child's parents and other persons;
3. the likely effect of any changes in the child's circumstances, including the effect on the child of any separation from his or her parents or any other person with whom he or she has been living including siblings;
4. the practical difficulty and expense of a child having contact with a parent and how that will effect their right to maintain a personal relationship with both parents;
5. the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
6. the child's maturity and background, including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torrens Strait Islanders;
7. the need to protect the child from effects of exposure to physical or psychological harm;
8. the attitude demonstrated by the parents to their responsibilities of parenthood;
9. any family violence involving the child or a member of the child's family.
The new terminology, in which the old term 'custody' has been replaced with 'residence' and 'access' has been replaced with 'contact', helps shift the focus from parental rights to the new emphasis on parental responsibility. The change does away with the presumption that the parent is entitled to access to his or her child. Rather, the court must now determine whether contact, or types of contact, with the child will be in the child's best interest.
The updated objective of the Family Law Act is to:
"ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children".
Further the Act acknowledges that,
"except when it is or would be contrary to a child's best interests
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development".
In most cases where there is a dispute between parties in relation to the care, residence and/or contact with the child the court will make certain case management decisions to aid in its determination of the best interests of the child. The two most commonly used aids are the appointment of a separate Children's Representative and the order for a Family Report.
A separate Children's Representative is a solicitor appointed for the purpose of assisting the court to make a decision. They are responsible for making sure the court has all the relevant information to take into account. There will be times when neither party will be willing to volunteer information which might be damaging to their case and it will therefore be up to the Child Representative to provide the court with such information.
The Child Representative does not take instructions from the child, as such, but is mindful of the child's wishes and attends at every stage of the court process including any negotiations between the parties.
A Family Report is a document prepared by a court counsellor after extensive interviews with the child, the parties, and any other person who will be or will potentially be involved in the life of the child. This can include siblings, step-parents, grandparents and any other person with whom the child will have some form of contact. The Report will make recommendations which the court will take into account when making its final assessment. The counsellor responsible for the Report will be made available to each of the parties during the hearing should they wish to cross examine him or her.
When making orders regarding children the court must consider the best interest of the child. Therefore any negotiation or attempt at settlement in children's matters will always be done in the shadow of the law. This means that, appropriately, the child's welfare, care and development should be the decisive factor in any such negotiations.
February, 2001
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