This is an extract of our Child's Best Interests S60 document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Independent Children's Lawyers See s 68L and 68LA in process below
The Child's best interests under s 60CA cases Parenting order for choice of education provider for the child Bishop (1981)
* Husband wanted to restrain wife from enrolling their daughter in ballet school.
* Treyvaud J found that in appropriate but very rare cases the question of where a child is to be educated is a proper mater for the court to consider. This is one of those rare cases because the choices offered by the mother and father are very different and father has genuine concerns.
* The Court Counsellor (AKA Family Counsellor) gave evidence that the daughter was an intelligent girl who had a deep feeling for ballet.
* Court found that the wish of the child to do ballet is a proper maturely held wish. It is important to consider that part of a child's welfare involves a consideration of the child's happiness. You don't automatically give in - children have to learn quite frequently that what is best for them is not necessarily what they want.
One parent takes the children Smythe (1983)
* Wife left home, took youngest child with her. Then asked for custody of the elder child from
husband. Husband refused and proceedings begun.
The TJ interpreted that both parents were good parents and the child's interests were guaranteed and so the wife leaving was used to choose between both of the parents. The Full Court disagreed strongly with the TJ. The FCFCA found that it had to go back for a new hearing because the evidence was not substantial enough due to the TJ's erroneous finding. FCFCA: In law, there is no onus on the person seeking custody to justify their withdrawal from cohabitation. There is no support for the proposition that in finely balanced cases, the Court may look to factors other than those relevant to the welfare of the child. 60CA
- child's best interests are the paramount consideration. Proper approach in Jurss: o The welfare of a child in any particular case must be determined on the facts. o To look for disqualifying factors against the mother is to put the cart before the house. o The inquiry is a positive one designed to promote the interests of the child, not to demote the claims of either parent. Factors which have little or no bearing on the welfare of the children should be treated as of minor or no significance when assessed alongside the child's welfare. They cannot be decisive of the issue, or be relied on to determine what order will best promote the welfare of the child. BEHAVIOUR may be relevant to the extent that a child's welfare can be affected adversely by the influence and attitude of the parent.
* The issue is who should have primary custody of the child, aged 6. She is the youngest of 4 children and living with her Mother - the other three are living with the Husband. The wife had left with the child without disclosing her address and it took 18 months for the case to begin as
the husband couldn't find her. The wife argued that the husband drank too much, frequently away from the home. Fogarty J: An unusual light is case upon the character of the mother - that she would leave with one child without any effort to make contact with the other three. The husband did give prior consent for the wife to have custody the 6 year old but only because he was having a hard time being a single parent of the other three and his consent was reluctant and forced upon him by the pressures at that time. As soon as the husband could bring proceedings for custody, he did. Both parents are capable parents and the wife has a stronger financial position. The child was with the mother 18 months but this happened as a result of events beyond the father's control. Therefore it is inappropriate to discuss the 'status quo' in this case. (reading between the lines the judge likely meant that a status quo in which parents take children without their partner's consent should not be upheld).
But the matter must be determined based on the long term welfare of the child. (the best interests of the child are paramount under s 60CA). He was very concerned that if the child remains with the mother, that the child will grow apart from the other siblings. Findings: o PREFERRED ROLE OF MOTHER.
? It is not a presumption - it is simply a factor to be taken into account.
? Not to look for factors with the parents - it is a decision to promote the best interests of the child. o STATUS QUO
? No onus exists that one party must show that it was positively advantageous to the children to change the status quo.
? Child's interests and welfare are paramount. Status quo may be more detrimental than change. o NON SEPARATION OF SIBLINGS
? The cases in which the welfare of a child requires that a family be divided are very rare.
? Much authority to support non-separation of children except in special circumstances.
? Again, no principle, merely another factor.
* Husband removed the child from Norway and came to Australia without telling the mother.
The case took 2 years to come to court and the father argued that the child had now become Australian and therefore it was in his best interests to stay. The mother argued that the child was kidnapped.
Full court: Found that the 'kidnapping' parent is not disqualified from custody - the welfare of the child is always the paramount consideration. The past behaviour of the parents is important but only so far as it has bearing on the well being of the child. A parent who deliberately removes a child from contact with another parent in circumstances where it was not necessary or reasonable to advance the child's welfare will generally be viewed as acting contrary to the welfare of the child. The father acted irresponsibly by concealing the child's whereabouts but the court's concern is about the child and not simply justice between the parties. The findings favour the father over the mother. The father is more stable and has done a good job caring for the child, while the mother is more uncertain. Father gets the child based on the principle that the child's welfare is paramount.
One parent wants to move B and B (1995)
* Parents have arrangement where one is day to day parent and one has contact with the child. One parent then wants to move. The day to day mother wants to move to Victoria from Canes
and the contact father says it will disrupt his rights. She had a new relationship and it wasn't feasible for the boyfriend to move.
Full court: There is no special law about relocation and it is all about the child's interests under s 60CA. The court needs to think about whether the parent's ability to live a more fulfilling life is in the interests of the children, the distance and permanence of the move, the degree of change involved, whether it is temporary or permanent, dislocation from the child's former environment, child's wishes, ages of children, feasibility of costs and travel and alternate forms of contact. In this case the court was persuaded to allow the kids to relocate with the mother and tried to make the contact arrangements better for the father. The court floats an unanswered question: what if it was the other way around? The contact parent wants to relocate? Could you have a situation where the day to day parent wants to stop them moving? Would the court have jurisdiction to stop them? They said no in a practical sense it would not have the power because if the contact parent is unwilling then it is not in the best interests of the child to force them.
U v U (2002) and Watt's comments - Being able to relocate with the children (2003)
* Mother wanted to take kids to India with her. Dad resisted and 5/7 said that the children should stay in Australia with the father and not move. The TJ found that the wife must reside in Australia and that the father have contact.
* The issue was the child's right to have a relationship with the non-residence parent and for the residence parent to be happy and not imprisoned in a place the parent does not want to be - Watts argued. In Australia the mother is the residence parent 83.4% of the time. Watts argued that relocation cases are always different and father's groups and feminists are divided - there needs to be more legal guidelines about what factors should be considered by judges in making a decision in these cases.
Religious views of one parent Horman (1976)
* The child 'resided' (instead of saying 'custody) with the mother. Father had child contact
arrangement (not 'access' anymore). It was a custody battle. The husband had zany religious views and wanted to live in a hut without real financial support and to indulge in drugs. Who is the best day to day parent?
Fogarty J: The court is not to pass any judgment on the correctness of philosophic views. Applicants do not have to fit themselves within some accepted social norm or groove. The husband's waky religious views are not the reason that the wife got day to day access to the child. It was because the husband's lifestyle could endanger the child. For example the father refused to send the child to school. It is a rare and compelling case that would require the court to refuse all contact by a parent to their child. It is normally for the benefit of the child that they maintain contact with both parents but the amount of access depends on the circumstances. There will be no refusal of access unless access would endanger the child's well being. Contact was agreed upon. There were terms and conditions on the undertakings (meant to prevent dangers occurring to the child) including that they the parents could not do drugs in the child's presence and the dad had to surrender his passport to the registrar of the court.
* Husband wanted day to day care of his daughter. Husband is Catholic. Mother is Jehovah's Witness who lived in a restricted Tasmanian community of only Jehovah's Witnesses - daughter lived with her and was very happy (wanted to stay).
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