By Carlos Turini – Accredited Family Law Specialist
In a family law dispute involving children, the court is required to consider a number of factors which are prescribed in Part VII of the Family Law Act (“the Act”) entitled “Children”. Part VII contains over 100 sections. Not all the sections are relevant in every case but there is a long list of matters which the Court must consider in each case. This has become known as the legislative pathway which the Court must follow pursuant to the Act in children’s matters. The paramount consideration for the Court in each case is the best interest of the child. [1]
Best interest of the child
A legal dispute about children is something different than an ordinary dispute in a court between two parties. The personal interests or the personal rights of each litigant are subservient or less important than what is in the interests of the child. [2]
The approach that the court takes is that it makes an enquiry about what is in the best interests of the child:
“In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.”
Section 60B of the Act lists the objects and principles underlying Part VII of the Act. The lists emphasises the rights that children have including:
- the right to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- the right to receive adequate and proper parenting to help them achieve their full potential; and
- the right to know and be cared for by both their parents
- The right to spend time 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
In order for the court to come to a conclusion in a particular case to decide what is in the best interest of the children, the court must take into account a list of matters, some categorised as “primary” considerations and others as “additional” pursuant to section 60CC of the Act. [3]
Family Law Disputes Involving Children Pt III
For more information, contact Carlos Turini
p: (02) 6206 1300 | e: cturini@elringtons.com.au
[1] See section 60CA of the ACT
[2] M & M [1988] 166 CLR 69, 76 (The Court).t comprising Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ
[3] See Part III Primary and Additional considerations for the court.
