The Best Interests of the Child – Primary Considerations

In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s60CA of the Family Law Act). In doing so, it must take into account the considerations set out under section 60CC of the Family Law Act. This is divided into “primary considerations” and “additional considerations”. This article summarises the primary considerations. The more extensive additional considerations are outlined here.

The two primary considerations are:

– The benefit to the child of having a meaningful relationship with both of the child’s parents (i.e., the value of parental involvement); and
– The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (i.e., protection against family violence and child abuse).

The legislation clarifies that in applying the two primary considerations, the Court is to give greater weight to the need to protect the child from harm.

Meaningful Relationship with Parents

The first of the two primary considerations is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. The adjective “meaningful” seems to indicate that it was not intended to focus on the parental relationship as a factor in itself, but rather on its significance for the child or children in question. For example, in a case where a father has had no contact of any kind with a child from birth to, say, aged 7, this primary consideration does not suggest that there is necessarily a benefit to the child merely from the biological father-child relationship. If, however, there is a prospect of the father becoming involved in the child’s life, then the effect of this appears to be that the Court would give careful consideration to the possible benefit to the child if that relationship, now purely biological, were to become meaningful.

It is important to note that the primary consideration of “the benefit to the child of having a meaningful relationship with both of the child’s parents” indicates that the point is whether the relationship is meaningful for the child, not for the parent as such. Thus, the Court does not act on a superficial view that any arrangement that would increase a parent’s involvement must be in the child’s best interests. For example, in some circumstances, it may not be deemed to be in a child’s best interest where such involvement exposes the child to intense conflict. In the case of Mazorski v Albright (2007), the Court considered that a meaningful relationship is one which is “important, significant and valuable to the child’; the word ‘meaningful’ is ‘a qualitative adjective, not a strictly quantitative one”. The words “benefit” and “meaningful” require the court to focus on the particulars of each case, and to assess the quality of the parent-child relationship.

Protecting the Children from Harm

The second of the two primary considerations is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. Family violence may be a factor of great importance in assessing the welfare of children. It is now well established that family violence may harm children even when it is not directed at them. If they witness violence between adults, or if they are implicated in it in various ways, it can cause great fear, stress, and damage. Similarly, violence between family members can adversely affect children’s health and development in a variety of ways.

Apart from such consequences, the use of violence to achieve one’s objectives in family relationships reflects very poorly on a parent’s attitudes to parenting and capacity to discharge parental responsibilities. It is important to note that the Court’s task is not to determine the truth of an allegation of child abuse, neglect or family violence in the way that a criminal Court must do, but to treat the best interests of the child as the paramount consideration. As established by the leading authority, the case of M v M (1988), the Court will not make a Parenting Order, if to do so would expose the child to an “unacceptable risk” of abuse.

In some circumstances, if a parent makes repeated groundless allegations of child abuse, leading to the child being separated from the other parent, the Court may consider that such repeated allegations could create an unacceptable risk of emotional abuse, and in such cases the Court may determine that it would be in the child’s best interests to live mainly with the other parent. An example of this is the case of Ruth v Hutton (2011) where the 5 year old child seemed to have had a good relationship with the other parent. However, such a reversal of Orders pertaining to who the child is to live with is more problematic where the child has a poor relationship with the other parent.

Finally, since 2011 the Court is required to give greater weight to the second primary consideration of the need to protect the child from physical and psychological harm. Therefore, even though there is great importance placed on the benefit to all children in having a meaningful relationship with both of their parents, greater weight is to be given to the child’s protection. Therefore, where child safety is a concern, the Courts are required to consider Orders that protect the child from harm as the priority consideration.

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

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