Section s 60CC of the Family Law Act 1974 outlines how a court determines what is in a child’s best interest.  What is in the child’s best interest is a paramount consideration of the Family Court.

In determining a child’s best interests the court must have regard to the primary considerations which are:

a)      The benefit to the child of having a meaningful relationship with both of the child’s parents; and

b)      The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence

Under s 60CC (2A) In applying the considerations set out above, the court is to give greater weight to the consideration set out in paragraph (2)(b)

Section s 60 CC(3) also lists additional considerations to be taken into account.  There are considerations from a) – m) listed.

 

An illustration of the above considerations can be seen in the case of Dunst & Dunst [2014] FamCA (11 November 2014).

In this case the mother had taken the five children into hiding while the father was imprisoned.  The mother of the children feared that the “father threaten[ed] their lives” (at [2] and [8]).  The trial judge Austin J found that the father did pose risks of harm to the children “which he either deceptively denied or of which he was bereft of insight” such as there “was no safe alternative but to eliminate contact between the father and the children” (at [4]). Austin J said that the “eldest two reject the father outright, either through contempt or fear…” (at [56])

Austin J continued (at [61]-[63]):

“Restoration of the three youngest children’s relationships with the father would most likely benefit them, but there is no utility in setting about restoring such relationships if other evidence powerfully motivates a contrary outcome.  There would almost certainly be countervailing emotional disturbance for the two eldest children and the mother if the three youngest children’s relationships with the father were restored, which is a consideration properly addressed under s 60CC(3) of the Act. Moreover, while children usually benefit from both the development and maintenance of good relationships with both their parents, that benefit is annulled when such relationships are abusive…”

Austin J found that an order could not “safely be made” for the children to spend either unsupervised or supervised time with the father (at [145]-[146]) but did order (at [151]) that he many communicate in writing with the children so as to facilitate any prospect of reconciliation.

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