What is a child’s best interest? More specifically, how does a Court decide what is in the best interest of a child when making a parenting order?
The governing principles of a child’s best interest that the Court is required to consider are:
- The benefit of a child having a meaningful relationship with both of the child’s parents; and,
- The need to protect a child from physical or psychological harm by being subjected to, or exposed to, abuse, neglect or family violence.
The Court will also consider the following issues when determining what is in the best interest of a child:
- The views expressed by the child and any factors that the court thinks are relevant;
- The relationship with each of the child’s parents and any other persons (family members);
- The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about the major long-term issues in relation to the child;
- The extent to which each parent spends time with the child;
- The level and extent to which each parent communicates with the child;
- The extent to which each parent has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
- The child’s circumstances and the likely effect on the child of any separation from either of his or her parents, or any other child;
- Practical difficulty and expense of a child spending time and communicating with each parent;
- The capacity of the child’s parents to provide for the needs of the child, including emotional and intellectual needs;
- The maturity, sex, lifestyle and background of the child, and any characteristics of the child that the Court thinks relevant;
- Whether there is any family violence involving the child or a member of the child’s family; and,
- Whether the court can make an order that would be least likely to lead to the institution of further proceedings in relation to the child; and,
- Any other fact or circumstances that the Court thinks relevant.
To simply put it, the court has a wide range of discretion to consider any materials that it deems fit within the confines of the Family Law Act and Family Court Act.
This may seem like a long list of consideration. However, to critically analyse a child’s situation, it is important to consider all factors that can persuade or dissuade the court from making an unfavourable parenting order.
There is a distinct difference between the interest of the child, and the interest of each parent. In many instances, parents may harbour a belief that their actions (or omissions) are in the best interest of a child. There should be a distinct difference between the interest of a parent and the interest of a child.
At times, a strong degree of critical thinking is required to navigate through the differences between the interest of a parent and a child. This may occur when the right and interest of a child to attend, or participate in, a certain social norm is contradicted by an opposing belief that may be held by a lesser majority of a public. It may also occur when there are irreconcilable differences of what is the best medical procedure for a child. At times, it may be the desire for a parent to relocate for economical reasons. In most instances, there are literature studies or common law principles that apply to assist our clients in understanding whether they stand in child-related proceedings.
Where children proceedings are prolonged and complex, the Court may appoint an independent children’s lawyer. The Independent Children’s lawyer (“ICL”) will then represent the child in these proceedings and consider any expert witness report that has been made for the benefit of the child. The ICL is entitled to make submissions on behalf of the child’s best interest to the Court in the course of family court proceedings.
The Court may appoint an ICL if:
- There is alleged child abuse;
- Prolonged parental conflict;
- Relocation of a child;
- Alienation from a parent;
- Proposal to separate two children from one another;
- Parent’s sexual preferences;
- When neither party is legally represented;
- Complicated medical procedure of a child;
- Issues pertaining to a conduct of a parent;
- Wishes of a mature child; or
- Cultural and religious beliefs.
Before you decide to file an application at the Family Court, it is important to consider whether your desired outcome can be achieved through the Family Court. Similarly, it is also important for you to consider whether you have a strong merit in making a Family Court application.
If you require legal assistance, feel free to speak to one of our trusted Perth family lawyers at WN Legal.