When the Court makes Orders relating to children when their parents separate, their paramount concern is “what is in the best interests of the children”.
How does the Court determine the best interests of the child?
To assist the Court in how to determine what is in a child’s ‘best interests’, the Court must refer to Section 60CC of the Family Law Act. Section 60CC mandates the Court to consider:-
(a) The ‘Primary Considerations’ with respect to children;
The two primary considerations are:
- The benefit to the child of having a meaningful relationship with both of the child's parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence .
(b) The ‘Additional Considerations’ with respect to children.
In conducting our Family Law practice, the balance between the these considerations is at the forefront of my interactions with my clients and the Court in my every day practice.
Section 60CC of the Family Law Act highlights that these ‘Primary Considerations’ are the first question the Court must ask in determining what level of time a child or children should spend with the non ‘Primary Carer’.
In most cases (but not all) this is often the Mother. The determination the Court must make and the consideration that I must work through with my clients, is to highlight to them the ‘right’ of their child/children in having a close and loving relationship with both of their biological parents. This must be balanced by the Court, against the need to protect children from any form of harm or family violence.
Section 60CC highlights that the overwhelming factor is to protect child from the risk of harm and abuse. This in practical terms is the threshold question that the Court must determine in every parenting case listed before it.
The right of the children to have a meaningful and positive relationship with the non ‘primary carer’ is always viewed, in practical terms, in the context of whether this ‘right’, is contradicted by any risk factors, i.e abuse, neglect or family violence. If they are protected from these factors, them the Court’s view is that the children will benefit from having a meaningful relationship with the ‘non-primary carer’.
This amendment to the Family Law Act in recent times is in my experience a direct result of the heightened problem with family violence. The Courts are now more than ever hyper-viligent to:-
(i) Protect the children first and;
(ii)Then promote their right to a relationship with each of their parents.
If you have a matter where there are any allegations of family violence and/or abuse (even if they are denied strenuously) in my view, these issues should be at the fore front of your mind.
Ultimately, it is up to the Court to assess what ‘weight’ is given to these allegations when assessing the living arrangements for a child and/or children.
The Court will need to assess the allegations. If they are found to be proven, then the Court may refuse to allow the child or children to spend time with the non-primary carer, as the need to protect the child from physical or psychological harm is greater than the child’s right to have a meaningful relationship with the ‘non-primary carer’.