sessment Task 2 – Research Essay – TA0169597Florence JulianThe Best Interests of the ChildThe ‘bestinterests of the child’, where the Paramountcy Principle is the foremostconsideration in the court’s assessment of  parenting orders, has been described as ‘aword of the widest meaning’1At first glance, the expression ‘best interests of the child’ seems easilyenough to determine.

However, under closer scrutiny and after many applicationsthrough the courts, it has become evident that this broad and vague legal conceptis rampant with inadequacies and uncertainties. This essaywill examine the evolvement of the legislation as it relates to this concept,the relevant cases and academic literature. In addition it will examine thepolarity and criticisms between the ‘strong’ and the ‘weak’ view as they relateto the paramountcy principle.

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IntroductionSections60CA  and S65AA of the Family Law Act1975 (Cth) sets out the principles a court must consider, as are the ‘bestinterests of the child’  in determiningwhether  to make a parenting order.Animportant distinction to note is that S60 CC is an adjunct to S60 CA, as thisis where it gives direction when issues of equal importance arise, yet needprioritizing in the hierarchy of needs. This refers to the two main issues ofprimary consideration such as the need to protect children from abuse, takingprecedence over the need of the child to enjoy a meaningful relationship witheither parent or relevant party; and the fourteen other additional familial,cultural and or religious considerations. Legislation (Historical)Theprinciple that the ‘welfare’ of the child should be of paramount considerationfinds its origins in the Infants Custody and Settlements Act 1899 (NSW). It wassubsequently included in the Matrimonial Causes Act 1959, and then in theFamily Law Act 1975 (Cth) as we know it today. The term ‘welfare’ of the childwas substituted by ‘best interests’ when amendments were made to the Family LawAct 1975 (Cth) in 1995. The meaning of the terms remained unchanged2as Parliament did not intend any difference, and was the same as S4(1) of theFamily Law Act 1975, where it was defined as ‘interests’ in relation to a childas including ‘matters related to the care, welfare or development of thechild’.

Also,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         it aligned with the more internationallyrecognized term as used in the United Nations Convention on the Rights of theChild3which Australia ratified in December 19904.Further amendments became necessary in 2006 with the Family Law (SharedParental responsibility) Amendment Act which fostered more co-operation andresponsibility between the parents and relevant parties when considering the ‘bestinterests’.  This led to the introducedsubsection 2 of the Family Law Legislation Amendment (Family Violence and OtherMeasures) Act 2011 which established a hierarchy of primary considerations thatjudges should give priority to on the occasion that two primary considerationsare in conflict.

 Throughoutthe Family Law Act 1975 there are many references and layering to the differentaspects 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, andorders relating to welfare of the child. CasesThe word’paramount’ was first used by Lopes L.J in 18965  in Re A and B (Infants)6following with Lord MacDermott in the House of Lords7case J v C8with reference to The Guardianship of Infants Act 1925 (UK), where he concludedthat the court must consider the welfare of the child as the ‘first andparamount consideration’. In 1976 inAustralia, a year after the Family Law Act became legislation, Goldstein J saidin In the Marriage of Kress9that not only should a child’s welfare be first of a list of factors toconsider, but that it should be the ‘overriding consideration’. This was alsostrongly supported by Nicholson CJ in the case of In the Marriage of H.

10This iswhere the first instances of ambiguity became evident. The question was askedif ‘overriding’ which was seen as a potentially misleading synonym11for ‘paramount’, then that would indicate that it over rode all otherconsiderations and therefore became the sole and only consideration, whichraised the question of whether any other consideration was of any relevance.Though thenumber of considerations in S60cc(3) are likely to lend support to the case ofa primary caregiver in the event that a dispute arises over the primaryresidence, it did not expressly indicate which parent has the  most immediate care of the child.

In Marriageof Smith12the Full Court found that the preferable approach was that each of the mattersin C60 be considered separately considering all the evidence, and then makefindings in relation to each of them, weighing up which has greater importance.A year later however,  in 1996 InMarriage of Taylor13,the Full Court held that the reasoning provided in Marriage of Smith could beuseful for consideration, but not strictly. However,Hayne J in AMS v AIF14held that the welfare of the child was not the only consideration the courtshould have regard. From this one could deduce that ‘paramount’ was more likelyto mean ‘principal’ or ‘main’ rather than ‘overriding’, and therefore opened itup to even  include  the interests of all the parties, with thebest interests of the child as the main consideration.15  In Marsdenand Winch (No 3)200716Warnick and Thackray JJ found that while the ‘primary considerations’ shouldhave its place in the hierarchy of importance that will support the bestinterest of the child, it was insufficient, and that the court was obliged totake into consideration ‘all’ of the relevant considerations in the legislationand give weight to those  that mostsupported the ‘best interest’.In Aldridgev Keaton17theFull Court said that the amendments of 200618did not indicate any preference or emphasis for priority, and that in somecases 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 19951997 FLC 92-755, 2173 United Nations Convention on theRights of the Child 1989, Article 3.14 Article 3(1); see Re Z1996 FLC92-694 at 83, 229; In the Marriage of B. 1997 FLC92-755 at 84, 2175 Pg 315 anthony dickey6 Re A and B(Infants) 18971 Ch. 786 at7927 Pg 315 anthony dickey8 J v C 1970 AC 6689 In the Marriage of Kress1976FLC90-12610 In the Marriage of H1995FLC 92-59911 Pg316 anthony dickey12 In the Marriage of Smith (1994)FLC92-488 at 81, 08413In the Marriage of Taylor (1996) FLC 92-661 at 82,83414 AMS v AIF (1999) 199 CLR 160 at 23015 A. Dickey. ‘The Best InterestsPrinciple: Truth, Ideology or Mantra?” (2011 85 ALJ 159     S43 (3) Family Law Act 197516Marsden and Winch (No 3)2007 FCA 136417Aldridge v Keaton (2009) 235 FLR 45018 Family Law Amendment (Shared Parental Responsibility) Act 2006


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