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The Best Interests of the Child

It is commonly appreciated that parenting disputes in the Family Law Courts are to be determined in accordance with the `best interests’ of a child, but what does this mean ?

The Family Law Act sets out a myriad of considerations when contemplating this question. We are referred by the Act to two primary considerations, with greater weight to be applied to the need to protect a child from harm arising from abuse, neglect or family violence over the other primary consideration, namely the benefit to the child of having a meaningful relationship with both of the child’s parents.

Whilst there is an abundance of more complex case law about what these terms mean, in many instances both will be satisfied by the competing proposals of a party. Attention then turns to the `secondary considerations’ which are wide ranging and include any views expressed by the child, the nature of the child’s relationship with important people in their life, the previous commitment shown to the obligations of parenthood (including financial contributions), any effect upon a child of a proposed change, the capacity of important people to meet the child’s needs, and considerations of culture, maturity and age.

Obviously there are two people in an ideal position to decide how the above considerations should dictate how a child lives and spends his or her time, hence there is a strong focus on empowering parents to reach their own agreement after exploring these issues through mediation. But what happens when agreement is beyond reach ?

Before contemplating proceedings, I strongly recommend you consider having a family report prepared privately. Such a report is generally prepared by an experienced psychologist or social worker, whom meets with the members of each household and importantly the kids too. No pressure is placed on a child about their wishes, but rather techniques are employed that are focused on identifying what will work best for a child, and if views are expressed, how much weight can be applied to those wishes.

The family report writer will then make some recommendations in writing around his or her observations and potentially the best way forward, or specifically what is likely to be the best interests of each child. Whilst sometimes expensive, it remains that the insight and guidance of a specialist should logically be sought before more expensive court proceedings are started. Certainly, seeking expert or specialist opinion is likely to be the first port of call when a child is physically ill, so it makes sense when a child’s emotional wellbeing is at stake. When faced with a serious dispute, it is almost inevitable that a Court will direct the preparation of a report. This is another good reason to avoid the court pathway and instead initially explore some expert opinion.