According to the Family Law Act, the best interests of children are met by:
- 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
- protecting children from physical and psychological harm and being subjected to abuse
- ensuring that children receive full parenting to help them achieve their full potential, and
- ensuring that parents fulfil their duty to meet their responsibilities concerning the care, welfare and development of their children.
These are all great concepts and few people would argue against them. Unfortunately, each is open to interpretation, which is why many disputes over children end up in court.
Under the Family Law Act, the Court takes into consideration a wide range of factors in determining what is in a child’s best interests, including:
- the views expressed by the child
- the child’s maturity and level of understanding
- the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
- the practical difficulty and expense of the child spending time with, and communicating with, each parent,
- the maturity, sex, lifestyle and background – including cultural traditions of the child and of the child’s parents, and
- any other factors or circumstances that the Court thinks are relevant.
In other words, the Court may take virtually anything into consideration in determining what is in the best interest of each child.
Although the Court may “take into consideration the views of the child”, children are not allowed to give evidence in court (nor, indeed, to watch events unfolding in the Court). A Judge has the power to interview a child but this is very rare; children’s wishes are usually determined by experts appointed by the Court.
Attempting to influence the children
The courts take a very dim view of a parent who tries to influence children against the other parent. Sometimes a Judge will order that parents do not discuss any issues or belittle each other in the presence of the children.
You may hold genuine views about the behaviour of the other parent of your children, but trying to influence the kids to your cause is unlikely to help and will possibly have the opposite effect. So, focus on what is relevant – the children’s interests. Getting this resolved will help everyone to move on.
In many cases, child experts are appointed by the Court to prepare a report on proposed arrangements for the children. Their report is provided to the Court to assist in its consideration of the orders it will make.
The Court will provide the expert with ‘terms of reference’ for the report, which might require:
- interviewing the child in the presence of the parents (first with one and then the other)
- interviewing the parents separately, and
- interviewing the child without either parent being present (depending on the age of the child).
The experts will usually assess each of the relevant factors set out in the Family Law Act (particularly in relation to the child’s wishes and the likely impact of each of the parents’ proposals on the welfare of the child) and report what they consider to be in the best interests of the child or children.
If a case proceeds to Trial, the expert’s report will form part of the evidence to be considered by the Judge and the expert can be cross-examined on the contents of the report. An expert’s opinions carry considerable weight and it is often difficult to persuade a court that the expert’s recommendations should not be followed.
When it’s resolved – complying with court orders
Whether you and your ex agree on the arrangements for the kids, or whether the Court orders have come about through the court process, once orders have been made you must comply with them – unless there are exceptional circumstances.
Exceptional circumstances might exist where you have a genuine fear that complying with orders (for example, by delivering the children to the other parent) would be placing the children in danger. If the particular danger had not been contemplated in previous court proceedings, you might be justified in withholding the children and disobeying an order. However, if your concern is that the other parent is simply an unsuitable person, or you simply don’t like the Terms of orders that have been made, you are not justified in deciding that the children should not go.