Custody vs Children’s Best Interests

by Peter Magee on October 2, 2016

Zoe Durand

When I meet with clients they often ask me about getting “custody” of their children. Often they are surprised to discover that the relevant legislation, the Family Law Act 1975 (Cth), no longer refers to “custody” of children and instead the Court must consider who a child will “live with” and “spend time with” and if the parents will share “parental responsibility” for a child or only one parent will exercise such responsibility. There has been a shift from the word “custody” which is possessory and implies ownership of a child, to children’s rights.

The Court must make decisions that are in the “best interests” of children. However the concept of “children’s best interests” can be elusive and can mean different things to different people. Arguably there is a lack of common agreement among legal and mental health professionals as to the meaning of the term, with broad criteria and little guidance as to the relative weight of each criteria.

The 1989 United Nations Convention on the Rights of Children (UNCROC), to which Australia is a signatory, ties children’s best interests with having a voice. Article 12(1) provides for children capable of forming a view as being afforded the “right to express those views freely” in matters affecting them with these views to be “given due weight in accordance with the age and maturity of the child.”

The Family Law Act 1975 (Cth) states that “an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Under the Family Law Act 1975 (FLA) the Court must regard best interests of children as the paramount consideration when making decisions. The primary considerations when determining children’s best interests are:

  • The benefit to children of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court considers additional factors such as a child’s views, relationship with the parents and other persons, effect on the child of a change in circumstances including separation from someone the child is attached to, practicalities of time occurring, capacity of parents to provide for the child’s needs, cultural issues including if the child is Indigenous, family violence, reducing future litigation, parents’ involvement with the child.

As each child and situation is unique the Court has discretion in parenting matters. This may explain why children’s best interests appear “elusive” as what a child’s needs unique and different in each specific matter and there is no “one size fits all” formula.

In some cases an “Independent Children’s Lawyer” is appointed by the Court to provide the Court with their perspective as to what is in a child’s best interests. Previously I have worked as a Court Appointed Children’s lawyer and whilst I do not currently work in this role, it has allowed me to have an insight into how Independent Children’s Lawyers are likely to view the needs and best interests of children in parenting disputes.

According to Legal Aid’s website, the key functions of an Independent Children’s Lawyer are:

  • arranging for necessary evidence, including expert evidence, to be obtained and put before the court;
  • facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case;
  • acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.

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