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How The Court Assesses The Best Interests Of The Child

The Law

Best Interests of the Child

97.          Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children.  Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):

“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).”

98.          Section 60CA of the Act provides that:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

99.          To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act.  Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals.  The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.

Section 60CC(2)

100.        Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests.  They are as follows. 

Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents

101.        There is no doubt that Y and X have a close and loving relationship with both of their parents. This was observed by Ms S when she formally observed Y and X with each of their parents.

102.        It is the Father’s evidence that he believes a continuation of the current arrangement which sees Y and X spending time with him when he is not working will ensure that he can continue to be fully engaged in all aspects of Y and X’s lives and will guarantee the continuation of their close and loving relationship.

103.        It is the Mother’s evidence that the lack of consistency and disruption to routine that the current arrangements cause Y and particularly X cannot be seen to be in their best interests. It is her evidence that she believes a consistent parenting arrangement will provide Y and X with certainty and continuity and will not in any way disrupt their relationship with each of their parents, particularly if the Father applies for and obtains a position within the Employer A that will give him a “normal working week”.

Section 60CC(2)(b) – The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

104.        Whilst the Mother accuses the Father of placing his own needs and in particular his wish to be an operational public servant ahead of the needs of Y and X, she is not critical of his actual care of them and makes no allegations that they are at risk in his care.

105.        The Father speaks positively of the Mother as a parent, describing her to Ms S as a good parent.

106.        Whilst it is very apparent that these parties do not like each other and struggle in being able to communicate effectively, Ms S in her family report at paragraph [50] makes the observation that “their protective parenting style is likely to prevent the children from being overexposed to their conflicts in the longer term.”

107.        Ms S does however forewarn that “chronic parental conflict and hostility is well documented in the literature as having a detrimental impact on children’s adjustment post-separation.” Ms S particularly notes that “for children with social and emotional difficulties such as X, interventions to support his development are highly dependent on consistency across parenting arrangements in an environment where conflicts are resolved skilfully.” She states “ongoing parental conflict poses risks to the efficacy of any treatment plan, and in the process, X’s developmental (sic) may be compromised.”

108.        To their credit, and despite their difficulties, these parties are both fully engaged with the treaters who are assisting X. They have been able to jointly attend educative sessions with Ms G and to follow her advice and directions in relation to consistent parenting for him when they have him in their care.

109.        The parties have also worked together to access National Disability Insurance Scheme (“NDIS”) funding for X as well as working closely with his school to ensure he has access to all the supports necessary to facilitate him in being able to fully engage in his education.

110.        It is very apparent from Ms S’s evidence and that of Ms G that this level of cooperation must continue into the future.

Section 60CC(3)

111.        Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest. 

112.        Each of the matters set out under that section will be considered in turn where applicable in this matter. 

Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

113.        Because of Y and X’s young ages, their views were quite properly not canvassed or explored by Ms S in any detail.

114.        She notes Y told her that the current arrangements are a bit confusing, “but not so much for me now … it’s harder for X … he doesn’t really understand.”

Section 60CC(3)(b) – The nature of the relationship of the child with: 

(i)  each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

115.        As noted, Y and X have a very good relationship with both of their parents.

116.        Ms S observes the Mother to have been Y and X’s primary carer and was therefore not at all surprised when the Mother reported some difficulties with X acting out with her that were not reported by the Father. Ms S explained that X would be more likely to display that behaviour with his mother because he has the confidence in their relationship to at times act out.

117.        The maternal grandmother has been actively involved in Y and X’s lives since their birth and continues in that role by supporting her daughter in looking after them on a very regular basis.

118.        Similarly, the Father reports his mother being involved in Y and X’s care and of them having a close and loving relationship with her.

Section 60CC(3)(c) – The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child;

(iii) to communicate with the child

119.        The parties’ evidence differs considerably on the extent of the Father’s involvement with the care of Y and X whilst the parties were together.

120.        The Mother describes the Father as not being supportive of her and of the children during the relationship and of him being more committed to his work both as a public servant and as a tradesman than being available to care for the children.

121.        The Father disputes the Mother’s evidence that he was not an involved father and describes himself as being available and actively involved in Y and X’s care as his working commitments allowed him to be available to them for six days out of every eight.

122.        It is the Father’s evidence that when X was born he was a very difficult baby and that he would spend considerable time in caring for Y to give the Mother some respite.

123.        What is clear is that since separation the living arrangements that the parties have had in place have ensured that both parents have been actively involved in Y and X’s care.

124.        Further, as noted in this judgment, both parents have actively been involved in the decisions and treatment necessary to assist X given his recent ADHD diagnosis.

Section 60CC(3)(ca) – The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

125.        It is apparent from the parties’ evidence that money and financial matters were a source of conflict and tension between them during the relationship.

126.        The Mother accuses the Father of being very secretive about his finances and of failing to contribute to and meet fully the expenses of herself and the children.

127.        A notation to the interim consent orders made on 9 July 2018 provides for each of the parties to pay one half of any gap medical expenses relating to the children less any rebates to be refunded to the paying parent.

128.        The Mother makes complaint that the Father takes considerable time to reimburse her for X’s medical costs, questioning and delaying payment despite her sending him full documentation.

129.        The Father currently pays child support as assessed by the Child Support Agency in the sum of $230 per week.

Section 60CC(3)(d) – The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

130.        It is the Father’s evidence that if orders were made as proposed by the Mother, it would result in Y and X being cared for by others whilst he was at work. He argues that this cannot be seen to be in their best interests as it prevents him from being able to have the same level of active involvement in their day-to-day care that is afforded to them under the current arrangements.

131.        It is the Mother’s evidence that her proposal would provide Y and X with a level of certainty and consistency that is lacking in the current arrangements but would still ensure the continuation of the loving relationship that they have with both of their parents.

Section 60CC (3)(e) – 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

132.        It is the Father’s evidence that if orders were made as proposed by the Mother and he continues to work as an active public servant, there will be a real practical difficulty for him organising care for Y and X during those periods he is required to work when they are in his care.

133.        Whilst he has a supportive mother, it is the Father’s evidence that she is not able to commit to providing that care on an ongoing and permanent basis to cover his working commitments.

Section 60CC(3)(f) – The capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

134.        Both parties are responsible parents who have at the forefront of their actions the best interests of Y and X.

135.        I am satisfied that both parties can and do provide for the emotional, intellectual and physical needs of Y and X.

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

136.        As has been noted X has recently been diagnosed with ADHD, albeit it is a little unclear whether that has been a formal diagnosis or one that is pending confirmation from X’s paediatrician Dr D.

137.        Both parties are very much attuned to X’s difficulties and whatever else they are unable to agree on, they are on the same page in terms of recognising his difficulties, accepting the necessity for him to receive ongoing specialist treatment and most importantly are committed to following the advice of his treaters to ensure a consistency of routine and care in both homes.

138.        As was quite properly highlighted by Ms S, Ms G and Dr D, X’s wellbeing is highly dependent on consistent parenting in both parents households. Ms S’s evidence is that parental conflict poses a risk to the efficacy of X’s treatment plan. It will therefore be vitally important that these parents continue to work together to ensure the current consistency of care that they provide X, whatever might be the state of their adult relationship.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

139.        These parties are responsible parents who I am satisfied prioritise Y and X’s needs.

140.        However, some of their tit-for-tat behaviour, particularly in the context of the intervention orders, does not reflect well upon them.

141.        The Father’s actions in having the Mother breached for the intervention order on the basis of the photographs that the Mother briefly posted on Facebook some four months earlier does not reflect well on him at all and can only be seen as a spiteful and unpleasant act.

Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)            the nature of the order;

(ii)           the circumstances in which the order was made;

(iii)          any evidence admitted in proceedings for the order;

(iv)         any findings made by the court in, or in proceedings for, the   order;

(v)          any other relevant matter.

142.        The circumstances which gave rise to the contested intervention order applications that each of the parties have against the other has been well canvassed in this judgment.

143.        The incidences which led to intervention orders being sought occurred around the time of physical separation when emotions were particularly heightened and when, to quote the Father when speaking to Ms S “(we) both said things we didn’t mean”.

144.        Both parties continue to pursue the interim orders that they have against the other, with the Wife declining an offer from the Father during the final hearing to mutually discontinue their intervention order applications.

145.        In the Father’s discussions with Ms S, the Father expressed the belief that the interim intervention order he had against the Mother has had the desired effect of modifying the Mother’s behaviour around him. The Mother in her vive voce evidence indicated that she believes she has proper grounds to obtain an intervention order against the Father.

146.        The Father’s behaviour in causing the Mother to be charged with breaching the intervention order and the pettiness of that action has already been discussed in this judgment.

147.        There is no doubt that the Mother genuinely finds the Father to be overbearing and aggressive on issues relating to the children. She views the Father’s proposal for time with Y and X as a continuation of this behaviour rather than it being a reflection of his desire to maximise the time that he can spend with them.

148.        The Father in turn finds the Mother to be undermining of his parenting of the children and dismissive of his contributions to their care.

Section 60CC(3)(l) – 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

149.        In the majority of parenting cases it is in the best interests of children that their parents not be involved in ongoing litigation in relation to their care. This is such a matter.

150.        If the Father were to take up the recommendation of Ms S and obtain a position for a period of up to two years that would enable him to work regular hours and put in place arrangements as proposed by the Mother, there is a real possibility that at the end of that period the Father would return to active duty as a public servant and the question of what the ongoing living arrangements for Y and X would again be live between the parties.

151.        If orders are made in the terms sought by the Father and if the promising start made by X to his education and the progress he is making generally in relation to managing his ADHD was to falter, there is the potential for further litigation if one of the causes of X’s difficulties is identified as being his living arrangements.

152.        If orders were made in the terms sought by the Mother and the Father continues to work as an active public servant there is the potential that he will not be able to always arrange for care of Y and X and that he may call on the Mother to assist in the care of the children when they should otherwise be with him. This would undermine the certainty that the Mother is seeking not only for the children but for herself.

153.        What is apparent from the parties’ evidence is that both parties feel very strongly about the appropriateness of the proposals that they are putting forward. One of them is going to struggle to accept the Court’s decision when it goes against that which they are seeking. It will therefore be vitally important for Y and X that the disappointed party accepts, as far as it is possible to do so, the Court’s decision and does everything within their power to ensure that the arrangements work.

Section 60CC(3)(m) – Any other factor or circumstance that the Court thinks is relevant

154.        As was flagged earlier in this judgment, there is some uncertainty about the Father’s proposal for holiday time with Y and X.

155.        Whilst the Father’s Counsel advised the Court the Father was seeking orders for there to be an equal sharing of the school holidays, the Father seemed more ambivalent about this proposal when giving his vive voce evidence and seemed to indicate Y and X should spend time with him when he has organised his holidays rather than necessarily during the school holidays.

156.        The reality is that the Father is entitled to ten weeks of holiday per year. Despite separating from the Mother 12 months ago, the Father has made no effort to ensure that his holidays, at least in part, coincide with Y and X’s school holidays.

157.        There was a tone to the Father’s evidence that he expects the Mother to accommodate his holidays rather than the school holidays. This would result in the Mother not being able to plan her own holidays with the children or have some degree of certainty around what her working and child care arrangements need to be over the holiday period.

158.        The current interim orders provide that where changeover does not take place at the children’s school or childcare, changeover is to take place at the maternal grandmother’s home in Suburb T and, for this purpose, the Father is at liberty to walk to the front door with the children but to not enter the home.

159.        It is the Father’s evidence that the requirement to effect changeover at the maternal grandmother’s home is unnecessary and requires Y and X to undertake unnecessary travel given that he and the Mother live in relatively close proximity to one another.

160.        The Father is proposing that changeover that does not take place at school should take place at the Mother’s home. He indicated a willingness to agree to an order that he would remain in his car when he dropped Y and X off if that would give the Mother some confidence that this would ensure that there was no unpleasant or unnecessary exchanges between them.

161.        When cross-examined on this issue, the Mother somewhat reluctantly agreed to a proposal of exchange at her home on the basis that the Father stayed in the car, noting that she and the Father had done that at her mother’s house once when her mother had not been there.

162.        In the Amended Initiating Application filed by the Mother on 25 February 2019, she sought orders for the parents to each pay half of annual private health care insurance for Y and X and half of Y and X’s extra-curricular activities.

163.        The Court does not have the jurisdiction to make such orders other than by way of a Departure Order under the Child Support (Assessment) Act 1989 (Cth). There is no application before the Court for a Departure Order and accordingly, the Court cannot make the orders sought by the Mother in this regard.

Posted in: Derek Legal Blog at 10 February 20

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