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How does a Court decide where a child will live

“Best interest of the child”

This is an overused legal term that is not defined by the Family Law Act. Let’s be real – how do you define what is in the best interest of a child. Have you ever met two children who were the same? It is impossible.

When the Court is deciding where the child(ren) is going to live and who they are going to spend time with it must consider the best interest of the child. Clients always ask me “How does the Magistrate even know what is best for my child?”. My answer is simple – they rely on the evidence before the Court and use the legislation to guide them (typical lawyer response).

So how do you consider the best interest of a child you have not met?

Well, the Legislation provides matters which must be considered when determining the best interest of a child.

The two primary considerations the Court must consider are:

The benefits of the child of having a meaningful relationship with both of the child’s parents; and

The need to protect the child from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence.

These are the matters which must be at the forefront of the Magistrate’s mind. They are the overarching considerations. Did you notice they are not gender bias? (shock, I know!)

The reason these are primary considerations is that they are at the heart of the objects and principles which ensure the best interest of the children are met. What are the objects I hear you say…here they are:

·         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 interest of the child; and

·         Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence; and

·         Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·         Ensuring the parents fulfill their duties and meet their responsibilities concerning the care, welfare and development of their children.

(Notice all the AND’s – all of these points create the objects. It isn’t a ‘pick and chooses’ which suit exercise)

And the principles underlying those objects? Well, they are a little warmer and fuzzier:

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

·         Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care, welfare and development (ie grandparents and other relatives); and

·         Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·         Parent should agree about the future parenting of their children; and

·         Children have a right to enjoy their culture. (Note: Aboriginal and Torres Strait Islander children have a right to enjoy their culture which includes maintaining a connection with culture and to have the support, opportunity and encouragement necessary.

Remember, this is a Family Court – Family being the keyword. We are dealing with humans, real people, real lives, children of all ages.  

Is that all the Court considers? NO – these are just the principals, objects and primary considerations. There are a lot more considerations the Court must think about (which I will cover in a future blog).

If you take anything from this blog I want it to be this: Children’s matters are not straight forward. Just because you are a parent does not mean the Court will afford you the time you want with your child (Sounds harsh – I don’t sugar coat). If parents cannot agree at mediation what is in the best interest of their children then the Court will assist by taking into consideration all of the things I have discussed and more.

If you need some guidance about child-related matters, contact our office for some honest (frank), realistic (not sugar-coated) and easy to understand (plain English) advice.

Kerstin Stringer

Principal Solicitor (Boss Lady)