The Best Interests of the Child – Parental Abilities

When considering what is in the child’s best interests, the Court is to take into account parental abilities and commitment and the ability to provide for the child’s needs. Under section 60CC(3)(c), (ca), (f) and (i), the Court is required to consider both parties’ parental abilities and commitment including:

– Participating in making long term decisions about the child; spending time with, and communicating with the child;

– Fulfilling obligations to maintain the child;

– Capacity to provide for the needs of the child, including emotional and intellectual needs; and

– The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Prior to 2011, the Court also considered the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. This enabled the Court to take into account the behaviour of parents who unjustifiably alienated the child from the other parent. This also enabled the Court to appreciate circumstances where a parent was taking proactive steps to enhance the child’s relationship with the other parent.

However, it became clear that as a result of this consideration, parties were sometimes not disclosing concerns of family violence and child abuse for fear of being found to be an “unfriendly parent”. Therefore the removal of this consideration in 2011 was intended to encourage parents to put all relevant information before the Courts and not be concerned about being the “friendly parent”. Despite the removal of this provision, it remains important to distinguish between a parent who is unjustifiably unsupportive of the child’s relationship with the other parent, as opposed to a parent whose behaviour and actions stem from a genuine concern about the safety of the child in the care of the other parent.

Often, parties seek to bring to the Court’s attention evidence about the conduct of the other parent. However, it is important to note that matrimonial “fault” or conduct is relevant in relation to child custody matters only if it has some bearing on the fitness of the person as a parent, and as a consequence, on the best interests of the child. This principle applies not only to issues of fault, such as adultery, cruelty, or whose decision it was to end the relationship, but also other aspects of a parent’s behaviour, such as a poor attitude towards the other parent. “Mud-slinging” in child custody cases is strongly discouraged, and making irrelevant or unfounded allegations can be highly disadvantageous. 

The Court in recent decisions has stressed that it should not rely on preconceived and traditional notions of family units and parental role models, and the Courts acknowledge and respect the diversity of lifestyles and cultural differences and values in each family. However where a particular value or lifestyle or approach to child rearing creates risk for the child, the Court will consider whether it is a relevant issue to consider in determining the question of best interests.

If you require assistance with a child custody matter or in obtaining parenting orders, Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.