Doing What Is Best for a Child in Contentious Parenting Matters

The concept of what is best for a child’s welfare, or what is in the ‘best interests of the child’, pertains to those principles used by a Court to decide the best outcome for a child given a particular set of circumstances.

The idea is most commonly used in the context of family law determinations following a separation, divorce, or family breakdown. However, even if matters do not end up in Court, putting a child’s best interests foremost should be a parental priority.

How does a Court determine what is in a child’s best interests?

The Family Law Act 1975 states that the Court should base its determination of the best interests of a child on two primary considerations. The first concerns the benefit to the child of having a meaningful relationship with both parents and, secondly, the need to protect the child from physical or psychological harm such as the exposure to abuse, neglect or domestic violence. The Court will give more weight to the second of these considerations because of the overriding importance of protecting children from harm.

There are many other considerations that may be relevant which are covered in the Act, including any family violence orders applying to the child or member of their family. The child’s relationship with each parent and other persons, including any grandparent or other important relative, will be taken into account. The child has a right to enjoy their own culture and share it with others of the same culture.

Also relevant is just how much time each parent is willing to give to participate in important decisions about the child and how much time each parent spends or communicates with the child.

A child’s views could be relevant depending on their level of maturity and understanding.

Family law issues and the best interests of a child

Specific relevant family law issues where the best interests of the child are paramount include:

Child relocation

If one parent wishes to relocate to another part of the country, for example, for employment opportunities the Court might consider that to be in the child’s best interest. On the other hand, it might refuse a child relocation request if that would unreasonably limit the other parent’s access to their child.

Family violence

Many cases that reach Court over parenting arrangements involve allegations of violence within the family. The Court is required to consider the allegations and assess what risk may exist to the children. Allegations, which may after-all be false or exaggerated, may be denied with little evidence on which to make an assessment.

There remains the requirement to protect the child’s right to have a meaningful relationship with both parents, if possible. Where family violence has occurred the Court will still try to facilitate the child having a relationship with both parents including the perpetrator of the violence. In appropriate circumstances, this can be achieved by the use of supervised or limited access to the child.

Parenting orders

A parenting order will often determine with whom a child will live and also allocate how much time they will spend with each parent. It can cover their education, health issues and all those matters relating to the welfare of the child.

In making a parenting order the Court will consider the two primary factors outlined as well as any other relevant factors. The child’s views will be given increasingly greater weight where they are considered mature enough to understand and cope.

The Court will consider the relationship between each parent and the child. If the child has a better relationship with one parent than the other this may well influence the final order made. 

Case Study: Tanberg & Remmy (2021) FamCAFC 49

This very recent case concerned an appeal from parenting orders by the mother of a three year old child. 

Initially, orders had been made by consent, whereby the child was to spend equal time with both parents on a three day cycle pending an expert’s report. Once the report had been released the mother sought interim orders for the child to live with her. The father wanted the continuation of equal time sharing. The Court declined to make either order because there was insufficient material for the Court to rely on to make changes to the existing consent orders. As this effectively continued the equal time sharing arrangement the mother appealed. The mother lost, with the Court commenting that ‘cases must be decided on the evidence that is before the Court’ and while ‘experts have opined that shared care arrangements are not ideal for children of this age’ this ‘does not forestall the possibility that such orders might be, in all the circumstances of the child’s case, in her best interests’.

This case underlines the importance of evidence, particularly from an expert. The Court is limited to the evidence presented and may decline to make orders if it is not persuaded that they would be in the child’s best interests.

What does it mean?

The Family Law Act aims to ensure that children receive adequate and proper parenting so as to give them the best chance to achieve their full potential. For their part, parents need to face up to their duties and responsibilities.

The primary focus of the Act is to protect a child’s right to have a meaningful relationship with both parents provided the child is not at risk of harm. The Court will always endeavour not to make orders for a child to spend time with a parent, or give parental responsibility to a parent, if the Court thinks that would be inconsistent with the child’s best interests.

Where parents cannot agree, the Court will consider these principles and all relevant matters as the basis for establishing the needs of each child and determine accordingly.

Contact our Family Lawyers in Sydney, NSW

Szabo & Associates Solicitors are specialist family lawyers with experience in all matters relating to children and all aspects of family law. Please call us on 02 9281 5088 or complete the online contact form.