sessment Task 2 – Research Essay – TA0169597
Florence Julian

The Best Interests of the Child

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The ‘best
interests of the child’, where the Paramountcy Principle is the foremost
consideration in the court’s assessment of  parenting orders, has been described as ‘a
word of the widest meaning’1
At first glance, the expression ‘best interests of the child’ seems easily
enough to determine. However, under closer scrutiny and after many applications
through the courts, it has become evident that this broad and vague legal concept
is rampant with inadequacies and uncertainties.

This essay
will examine the evolvement of the legislation as it relates to this concept,
the relevant cases and academic literature. In addition it will examine the
polarity and criticisms between the ‘strong’ and the ‘weak’ view as they relate
to the paramountcy principle.

Introduction

Sections
60CA  and S65AA of the Family Law Act
1975 (Cth) sets out the principles a court must consider, as are the ‘best
interests of the child’  in determining
whether  to make a parenting order.

An
important distinction to note is that S60 CC is an adjunct to S60 CA, as this
is where it gives direction when issues of equal importance arise, yet need
prioritizing in the hierarchy of needs. This refers to the two main issues of
primary consideration such as the need to protect children from abuse, taking
precedence over the need of the child to enjoy a meaningful relationship with
either parent or relevant party; and the fourteen other additional familial,
cultural and or religious considerations.

 

Legislation (Historical)

The
principle that the ‘welfare’ of the child should be of paramount consideration
finds its origins in the Infants Custody and Settlements Act 1899 (NSW). It was
subsequently included in the Matrimonial Causes Act 1959, and then in the
Family Law Act 1975 (Cth) as we know it today. The term ‘welfare’ of the child
was substituted by ‘best interests’ when amendments were made to the Family Law
Act 1975 (Cth) in 1995. The meaning of the terms remained unchanged2
as Parliament did not intend any difference, and was the same as S4(1) of the
Family Law Act 1975, where it was defined as ‘interests’ in relation to a child
as including ‘matters related to the care, welfare or development of the
child’. Also,                                                                                                                                                                                                                                
                                                                                                                                                                                                                                                                                         it aligned with the more internationally
recognized term as used in the United Nations Convention on the Rights of the
Child3
which Australia ratified in December 19904.
Further amendments became necessary in 2006 with the Family Law (Shared
Parental responsibility) Amendment Act which fostered more co-operation and
responsibility between the parents and relevant parties when considering the ‘best
interests’.  This led to the introduced
subsection 2 of the Family Law Legislation Amendment (Family Violence and Other
Measures) Act 2011 which established a hierarchy of primary considerations that
judges should give priority to on the occasion that two primary considerations
are in conflict.  

Throughout
the Family Law Act 1975 there are many references and layering to the different
aspects of ‘best interest’ where it begins with the Objects Clause in s 60B,
and goes on to address matters such as location orders, recovery orders, and
orders relating to welfare of the child.

 

Cases

The word
‘paramount’ was first used by Lopes L.J in 18965  in Re A and B (Infants)6
following with Lord MacDermott in the House of Lords7
case J v C8
with reference to The Guardianship of Infants Act 1925 (UK), where he concluded
that the court must consider the welfare of the child as the ‘first and
paramount consideration’.

In 1976 in
Australia, a year after the Family Law Act became legislation, Goldstein J said
in In the Marriage of Kress9
that not only should a child’s welfare be first of a list of factors to
consider, but that it should be the ‘overriding consideration’. This was also
strongly supported by Nicholson CJ in the case of In the Marriage of H.10

This is
where the first instances of ambiguity became evident. The question was asked
if ‘overriding’ which was seen as a potentially misleading synonym11
for ‘paramount’, then that would indicate that it over rode all other
considerations and therefore became the sole and only consideration, which
raised the question of whether any other consideration was of any relevance.

Though the
number of considerations in S60cc(3) are likely to lend support to the case of
a primary caregiver in the event that a dispute arises over the primary
residence, it did not expressly indicate which parent has the  most immediate care of the child. In Marriage
of Smith12
the Full Court found that the preferable approach was that each of the matters
in C60 be considered separately considering all the evidence, and then make
findings in relation to each of them, weighing up which has greater importance.
A year later however,  in 1996 In
Marriage of Taylor13,
the Full Court held that the reasoning provided in Marriage of Smith could be
useful for consideration, but not strictly.

However,
Hayne J in AMS v AIF14
held that the welfare of the child was not the only consideration the court
should have regard. From this one could deduce that ‘paramount’ was more likely
to mean ‘principal’ or ‘main’ rather than ‘overriding’, and therefore opened it
up to even  include  the interests of all the parties, with the
best interests of the child as the main consideration.15

 

 

In Marsden
and Winch (No 3)200716
Warnick and Thackray JJ found that while the ‘primary considerations’ should
have its place in the hierarchy of importance that will support the best
interest of the child, it was insufficient, and that the court was obliged to
take into consideration ‘all’ of the relevant considerations in the legislation
and give weight to those  that most
supported the ‘best interest’.

In Aldridge
v Keaton17the
Full Court said that the amendments of 200618
did not indicate any preference or emphasis for priority, and that in some
cases as the Explanatory Memorandum of the 2006 Amendment stated, ‘additional’
considerations could even ‘override primary ones’.

1 Howe v Howe (1961) 2 F.L.R 2 at 4.

2 B and B : Family Law Reform Act 1995
1997 FLC 92-755, 217

3 United Nations Convention on the
Rights of the Child 1989, Article 3.1

4 Article 3(1); see Re Z1996 FLC
92-694 at 83, 229; In the Marriage of B. 1997 FLC92-755 at 84, 217

5 Pg 315 anthony dickey

6 Re A and B(Infants) 18971 Ch. 786 at
792

7 Pg 315 anthony dickey

8 J v C 1970 AC 668

9 In the Marriage of Kress1976FLC
90-126

10 In the Marriage of H1995FLC 92-599

11 Pg316 anthony dickey

12 In the Marriage of Smith (1994)
FLC92-488 at 81, 084

13
In the Marriage of Taylor (1996) FLC 92-661 at 82,834

14 AMS v AIF (1999) 199 CLR 160 at 230

15 A. Dickey. ‘The Best Interests
Principle: Truth, Ideology or Mantra?” (2011 85 ALJ 159

     S43 (3) Family Law Act 1975

16
Marsden and Winch (No 3)2007 FCA 1364

17
Aldridge v Keaton (2009) 235 FLR 450

18 Family Law Amendment (Shared Parental Responsibility) Act 2006

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