The child’s best interest is a paramount consideration in all parenting orders (s65AA Family Law Act) and location & recovery orders. The Courts heavily considers a range of factors set out in s60CC Family Law Act to determine what is best for the child currently and the future – thus this list of considerations ultimately dictate whether or not your child is allowed to spend time with you and for how long.

The Law:

The Court considers a long list of factors to ascertain the Best Interests of the child in order to make parenting orders suitable to the needs of the child. S60CC(2) and (3) Family Law Act (FLA list the primary and secondary factors.

There are two primary factors, namely, the benefit to the child of having a meaningful relationship with both of the child’s parents (s60CC(2)(a) FLA) and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s60CC(2)(b) FLA). The latter of these primary factors has greater weight placed on it in the Court’s assessment of the best interests of the child.

The Court must also consider a range of secondary considerations in their assessment of the best interests of the child. These considerations include:

• Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give the child’s views

The Court, in giving weight to the child’s views, usually consider the child’s maturity and level of understanding. Therefore, the older the child is, the more likely that the child’s views will be given greater weight in comparison to an infant.

• The nature of the relationship of the child with each of the child’s parents

The Court will consider how close the child is with each parent and whether they have a loving and nurturing relationship or if they have a bad relationship.

• The nature of the relationship of the child with other persons (e.g. grandparents)

The Court may also look at the child’s attachment to other adults such as grandparents, aunts, uncles, and other persons who look after the child.

• The extent to which each of the child’s parents have taken, or failed to take, the opportunity to participate in making long term decisions regarding the child, to spend time with the child and to communicate with the child.

The Court will look at the time each parent has spent with the child as well as their involvement in decisions such as school, or religious affiliation. The Court will also look at how often and the quality of communication between each parent and the child. For example, the Court can consider that a parent had more time with the child and spent more time communicating with the child.

• The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The Court can consider whether one or both parents take on the roles of feeding the child, caring for the child, bringing them to and from school and other acts which are expected from a parent.

• The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or other person with whom he or she has been living

The Court again will look at the attachments the child has to the parents and any other persons and the potential negative impacts of being separated from these persons. For example, a child may have a very close relationship with their grandparents and the Court having to make an order to move them with the mother may result in that attachment being severed as the grandparents and mother live at least 2 hours away.

• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The Courts will look at the costs and the travel difficulties regarding facilitating spending time with each parent.

• The capacity of each child’s parent and any other person to provide for the needs of the child, including emotional and intellectual needs

The Court will look at the capabilities, financial or otherwise, to meet the needs of the child. This consideration will differ between cases as each child may have different needs that need to be met.

• The maturity, sex, lifestyle, and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant
• If the child is an Aboriginal child or a Torres Strait Islander child:
  1. The child’s right to enjoy his/her Aboriginal child or Torres Strait Islander culture
  2. The likely impact any proposed parenting order under this part will have on that right
• The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
• Any family violence involving the child or a member of the child’s family
• If a family violence order applies, or has applied, to the child or a member of the child’s family, the court must take into account the following:
  1. The nature and circumstances of the order
  2. Any evidence admitted in proceedings for the order
  3. Any findings made by the court in, or in proceedings for the order
  4. Any other relevant matter
• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
• Any other fact or circumstance that the court thinks is relevant

Case Law:

In Heath & Hemming (no 2) [2011] FamCA 749, the Court dealt with the question of whether relocation of the Child to New Zealand should be allowed, in accordance with the best interests of the child. The application is for equal parental responsibility between the Mother and the Father and that the Father does not relocate the child’s place of residence from the Gold Coast.

The Mother had an extensive history of drug addiction and went through a range of psychological therapy programs. The child J has thus been staying with the Father and the Paternal Grandmother; both of which are the primary carers of the child. The child’s Paternal Grandmother is seeking to move back to New Zealand.

The Court held that in deciding parenting orders and relocation orders, the court must consider the proposals independently in accordance with the best interests of the child criteria (s60CC  Family Law Act). The Court as part of the best interests of the child in s60CC FLA , must consider whether there is a meaningful relationship between the child and her parents as well as other adults. The Court considered the strong bond between J and the Father and Paternal Grandmother, as well as the limited relationship J has with the mother. In particular, the Court took note of J being resistant to spending time with the Mother and further concludes that the relationship between J and the Mother is not a meaningful one as J often refers negatively to her Mother in front of peers and other adults. For example, J often says she does not have a mother or that her mother has “problems”.

The Court also considered the views of the child on the Mother and the potential for a meaningful relationship to be established in the future as a factor allowing J to relocate to New Zealand. Furthermore, the Court considered the major changes to J’s life in the Paternal Grandmother moving away, as she is one of J’s primary carers.

The Court ultimately ordered equal parental responsibility and that J will not relocate to New Zealand until 1 August 2012 to facilitate J communicating and spending time unsupervised with the Mother. The Father was also required to pay a bond for the costs of the Mother flying to New Zealand, should J be relocated to New Zealand after 1 August 2012. However, should the Mother not meet her therapy conditions ordered by the Court, she will be liable to pay for her own costs to see J in New Zealand.

Biondi v Koen, is another case that explores the best interests of the child assessment in s60CC FLA. The Mother and the Father separated in 2016, and X (the child) was residing with the Mother. The Mother was a Brazilian citizen, whereas the Father was an Australian citizen. The Mother made an application to suspend overnight time between X and the Father due to the risk of the child contracting Covid-19.

The Court had to consider the need for the custodial parent/primary caregiver to be assured of the child’s protection. In this case, the Mother had a genuine fear of X and herself contracting Covid-19, however, the Court stated that the fear may be genuine but irrational and baseless as the Father had tendered evidence of precautions, he was taking to keep X safe. Some examples were that he personally disinfected his home prior to visitations and limited the visitors to just his sister. The Court thus found that although there was genuine belief, it was clearly open to doubt as the Mother’s belief was unreasonable. The Court ordered that the Father is to spend one overnight per week with X and is to pay for the costs of the Mother’s travelling and reasonable expenses of a medical consultation.

The “Best Interests of the Child” assessment made by Courts when considering parenting proposals and relocation proposals are often complicated and lengthy. However, family law experts here at Pannu Lawyers, are able to give you quality advice to assist you in navigating these family law processes and proceedings.

If you are currently going through a family law dispute, contact one of our experienced solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. Our principal is named as leading Family and Matrimonial Lawyer of the Year by Acquisition International in their 2019 leading Adviser Awards. Pannu Lawyers are conveniently located in Blacktown and practice extensively in Family Law, Criminal Law, Commercial Law and Conveyancing.

The above information is intended as general information and is not intended to be relied on as legal advice.