There are so many unsolved mysteries that continue to baffle and bewilder humankind. Who was Jack the Ripper? Where is the lost city of Atlantis? Why was Stonehenge created? Oh and a favourite of mine, who framed Roger Rabbit? However, there is no more perplexing and exasperating mystery to unravel than…What exactly are the “best interests” of the child.

If you’ve been there, and I assume many of you have, you will time and time again hear lawyers, family consultants and Judges all espouse the same tired old mantra. The problem is that experience has taught me there is no real practical way to interpret what those best interests are.

As a consequence of this, much uncertainty prevails. But one thing is for certain and that is the “best interests” principle is to this day used to affect a wide variety of preferences about children’s custody. The fallout in applying this vague expression without clarity or consistency means that one parent often gets the sharp end of the stick. I can assure you these parents are often left gobsmacked by the court’s decisions.

How do you decipher what it means? 
Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself. Should a judge primarily be concerned with the child’s happiness? Or with the child’s spiritual and religious training? Or with their health? Or education? Or with the amount of interruption travel between parents may cause? So much to consider by Judges, all with different styles and opinions, often results in “dog’s breakfast” rulings and orders.

So what does the Family Law Act (FLA) say about “best interests”? Surely the legislation can point parents, lawyers and Judges in the right direction.
Well we know that the FLA requires the court to regard the best interests of the child as the paramount consideration when making parenting orders. And section 60CC of the FLA states that the primary considerations are the benefit to 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.

With regard to violence, the FLA also states that greater weight is given to keeping a child away from violence than having good co-parenting. The problem here is that there are often allegations made in affidavits by both mums and dads against each other in regards to physical and psychological violence towards the children. Deciphering these allegations causes much delay in working out what best parenting outcomes would be. In saying that, I am not against the court taking time to investigate but I am against allegations being used as a tactic by one party, with little evidence to back it up.

Real meaningful relationships involve both parents
So where there isn’t issues with violence, the court should be clear. A “meaningful” relationship with both of the parents should involve, where possible, co-parenting in the true meaning of the word. To be even clearer, where it is possible and circumstances permit, children should be spending considerable amounts of time with each parent every week.

Now some of you are saying, hang on that’s just not physically possible. I hear you, but children adapt to and like routine in their lives and if you both can negotiate a way to ensure reasonable time is spend with the non- primary carer parent by giving them overnights and part (and occasional full) weekends you will have a parenting plan with little opening for complaint. And if you both live near each other splitting weeks can also be doable with good planning and a routine. Children in most cases want to see both their parents, if they are denied that they face emotional health issues and the other parent faces ostracisation and most probably emotional health issues as well.

Additional ingredients and the child’s voice
The FLA, just to confuse parents even more, then lists all the additional considerations the court can (not must) take into consideration. Of these, the ones I feel are most important are a child’s right to express their views on parenting, with greater weight obviously being given to a teenager’s point of view than a 3 year old. For years I have advocated the child’s voice being heard and not through some report a family consultant does after a 20 minute observation session. I mean seriously, children are more articulate today than when I was as a kid. If you’ve got a 6 year old you know what I mean. In their own unique way they can express themselves very clearly. How we move forward in getting a proper forum for children to do this is another conversation.

The other additional consideration I really think is important as a best interests of the child factor is ensuring that child has contact with their extended family. So much love on offer here and from mostly partisan relatives who don’t carry the grudge factor parents sometimes have with each other.

Naturally, there are a lot of other well meaning additional considerations but they are additional and often overcrowd and turn into a mystery what those core “best interests of the children” should be about.
What we really need for simplicities sake is an agenda centred around great co-parenting and the preservation of contact with a child’s extended family. People may not stay as couples forever, but their children deserve a family for life.

If you are interested in my feelings on dodgy child consultants and ICLs click HERE
And for ideas on the “perfect parenting plan” click HERE.

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Written by The Legal Eagle