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Best Interests of the Child

Part 7 of the Family Law Act 1975 deals with how a Court must approach deciding with whom a child shall live following the separation and how the child will spend time with the other parent.

Parties who separate, amicably and agree who their children are going to reside with and how they are going to spend time with the other party without the need of an Order, are free to do so even though the arrangement may not pass the test of what’s in the best interests of the child.

 

Section 60B provides:

 

60B Objects of Part and principles underlying it

(1)  The objects of this Part are to ensure that the best interests of children are met by:

(a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)  parents should agree about the future parenting of their children; and

(e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

 

As can be seen, Section 60B (1) and (2) focuses on the child and litigants in person are often told by a Judge that their proposals are not child focused and are not in the best interests of the child. It is an easy trap for couples who have re-partnered to fall into, focusing on how to make the new relationship work, rather than focusing on what is in the best interests of the child given the fact of the new relationship. What needs to be focused on is stability and safety, while recognising the child’s right to have a meaningful relationship with each parent.

Posted in: Derek Legal Blog at 13 February 18

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