16. Children's involvement in family law proceedings

The best interests principle

Introduction

16.6 The fundamental principle in international and Australian law concerning children is that all decisions made and actions taken should be in their 'best interests'. CROC requires that

in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[7]

16.7 The Family Law Act requires the court to have regard to 'the need to protect the rights of children and to promote their welfare' in any matter with which it deals under the Act.[8] The best interests of the child is to be the paramount consideration.[9] The aim of the Family Law Act with respect to children is

...to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.[10]

The best interests principle as the basis of decisions

16.8 In Australia the meaning of the term 'best interests of the child' has been explored most comprehensively in the family law area. The Family Law Act lists the factors that the court must consider in determining the child's best interests, beginning with any wishes expressed by the child.[11] Care and protection legislation in most States and Territories also requires consideration of the child's best interests.[12]

16.9 The principle has been criticised on the basis that it lacks certainty.[13]

Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself. Should the judge primarily be concerned with the child's happiness? Or with the child's spiritual and religious training? Should the judge be concerned with the economic productivity of the child when he grows up?...[I]f the judge looks to society at large, he finds neither a clear consensus as to the best child rearing strategies nor an appropriate hierarchy of ultimate values.[14]

...the diversity of values and circumstances which would affect decisions...precludes any realistic expectation that decisions would not be made according to the idiosyncratic opinion of individual judges — that, in other words, using a 'principle' like 'best interests' in the exercise of a welfare power would mean there are no rules at all.[15]

It has been suggested that, even where legislation provides guidance as to the factors to consider in making a decision about a child's best interests, that guidance remains normative rather than objective.[16] It is argued that the best interests principle '...has been used to affect a wide variety of preferences about children's custody'.[17]

16.10 However, submissions to the Inquiry generally considered the principle to be a useful basis for decision making concerning children.[18] It is said to ensure that children's interests are preferred over those of any other party, an important consideration because children's participation in proceedings is so limited.[19] It also allows each matter to be considered and determined on its own particular merits and allows changing community expectations to be taken into account in determining cases.

The scope of the best interests principle

16.11 The Family Law Act specifically requires the court to regard the best interests of the child as the paramount consideration when making parenting orders[20] and some other orders.[21] The court must consider a number of matters in determining the best interests of the child in those cases.[22] In deciding whether to make consent orders the court may, but need not, consider those matters.[23]

16.12 The scope of the current provisions requiring the consideration of the best interests of the child may be too narrow. Before the Family Law Reform Act 1995 (Cth) came into force a single over-arching provision required the consideration of the welfare of the child in all proceedings with respect to the child.[24] This requirement had been interpreted to apply to procedural as well as substantive issues.[25] Justice Chisholm has suggested that the ability of the court to consider the best interests of the child in determining procedural issues may be in doubt as a result of the 1995 amendments.[26] He considered that '...the purpose of this...change...is far from clear'.[27]

It may have been intended to give more force to the principle by repetition [in the separate sections rather than in a global statement]. But although repetition is a feature of the Act, it seems obvious that a single over-arching statement would be stronger and more compelling...Another possible explanation is that it may have been intended to limit the operation of the principle.[28]

16.13 In addition, the current provisions may not go far enough to establish, consistent with CROC, that the child's best interests should be at least a primary consideration in all decisions concerning them.[29] The High Court has held that matters 'concerning children' should be interpreted very broadly.[30] Therefore, greater scope should be given to the consideration of children's best interests under the Family Law Act.

16.14 Both these concerns can be addressed by including in the Family Law Act a requirement that in all actions of the court concerning children, the best interests of the child shall be a primary consideration. This would allow a balancing of considerations where the child's best interests need not be considered paramount but merely one of a number of considerations. It would address the concern that the emphasis given to children's best interests may be read down following the 1995 amendments. It would also more appropriately reflect CROC's requirements.[31] Such a provision would not interfere with the requirement in the Family Law Act that a child's interests be the paramount consideration in determining applications that most directly affect the child such as applications for parenting orders.[32] This provision should not apply to matters relating to the maintenance of children.[33] The considerations to be taken into account in maintenance deter-minations are, appropriately, expressly limited under the Act.[34] For these reasons, we recommend that in all actions concerning children the child's best interests should be a primary consideration unless the legislation expressly states otherwise.

Recommendation 135 In all actions of a court under the Family Law Act concerning children, unless the Act expressly states otherwise, the best interests of the child should be a primary consideration.

Implementation. Section 43 of the Family Law Act should be amended to reflect the provisions of article 3(1) of CROC in relation to all areas of the Act not subject to the present best interests requirement.

Assessing the best interests of the child

16.15 The Family Law Act lists the factors the court must consider in determining a child's best interests as

    • any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes

    • the nature of the child's relationship with each parent and other persons

    • the likely effect of any change in the child's circumstances including the likely effect on the child of any separation from either of his or her parents or any other person with whom he or she has been living

    • the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

    • the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs

    • the child's maturity, sex, background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks relevant

    • the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour or by being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person

    • the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

    • any family violence involving the child or a member of the child's family

    • any family violence order that applies to the child or a member of the child's family

    • whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

    • any other fact or circumstance that the court thinks relevant.[35]

16.16 Submissions to the Inquiry generally approved these factors.[36] However the wording of the factors indicates that they were intended only for considering issues related to parenting orders. The list should be broadened to be relevant to all types of proceedings in which the best interests of the child are the paramount or a primary consideration.[37] Further guidance could be of particular use in relation to deliberations in the court's welfare jurisdiction.[38]

Recommendation 136 The factors relevant to a consideration of the best interests of the child, enumerated in the Family Law Act, should also include factors relevant to all areas of decision-making to which the best interests principle applies, and in particular to location and recovery of children, adoption and the welfare of children.

Implementation. Section 68F(2) of the Family Law Act should be redrafted accordingly.

[7] art 3.

[8] s 43.

[9] Prior to 11 June 1996, the principle was known as the 'welfare principle'. It is discussed further in the context of representation at ch 13.

[10] s 60B(1).

[11] s 68F(2). See para 16.15.

[12] Children's Services Act 1986 (ACT) s 5; Children (Care and Protection) Act 1987 (NSW) s 55(a); Children's Services Act 1965 (Qld) s 52(2); Children's Protection Act 1993 (SA) s 4; Community Welfare Act 1983 (NT) s 9; Community Services Act 1970 (Vic) s 41. The proposed Tas legislation, the Children, Young People and their Families Bill (1997), also is intended to contain such a provision: cl 8(2)(a). See also Tas Government IP Submission 210.

[13] JL Dolgin 'Why has the best interests standard survived?: The historic and social context' (1996) 16 Children's Legal Rights Journal 1, 2.

[14] RH Mnookin 'Child custody adjudication: Judicial functions in the face of indeterminacy' (1975) 39 Law and Contemporary Problems 226, 260.

[15] M Rayner 'Protection and promotion of the best interests of the child' Paper Children's Rights: The Next Step Conference Brisbane 3–5 April 1997, 9.

[16] See JL Dolgin 'Why has the best interests standard survived?: The historic and social context' (1996) 16 Children's Legal Rights Journal 1, 3.

[17] id 6.

[18] eg Feminist Lawyers IP Submission 177. However, there was some limited disagreement with the proposition: eg Parents Without Rights IP Submission 32 suggested that '...the judiciary and the legal professions are not qualified to decide what is in the best interests of the child. We believe that only parents, with guidance from properly trained counsellors, are the best ones to make the decision as to what is in the best interests of their own children'.

[19] This issue is discussed in more detail at paras 16.18-22, 16.27-61.

[20] s 65E.

[21] ie location orders (s 67L), recovery orders (s 67V), orders relating to the welfare of the child (s 67ZC(2)) and some orders relating to adoption (s 60G(2)) although the Family Court's jurisdiction is limited in this regard. Adoption remains largely a matter of State and Territory jurisdiction. The Adoption of Children Act 1965 (NSW) has recently been the subject of review by the NSWLRC Report 81 Review of the Adoption of Children Act 1965 (NSW) NSWLRC Sydney 1997.

[22] These are outlined in Family Court Act s 68F(2). See also para 16.15.

[23] Family Law Act s 68F(3). The court may also register a parenting plan, discussed in detail at paras 15.48-54, when it considers it appropriate to do so in the best interests of the child: s 63E(3). In those cases, the court may, but need not, consider the matters outlined in s 68F(2) of the Act.

[24] Family Law Act s 64(1). The Family Law Reform Act 1995 (Cth) replaced the term 'welfare' with the phrase 'best interests'. It was not intended to change the meaning of the requirement: see Hansard (H of R) 30 May 1991, 4455.

[25] See R Chisholm 'Assessing the impact of the Family Law Reform Act 1995' (1996) 10 Australian Journal of Family Law 183.

[26] ibid.

[27] ibid.

[28] ibid.

[29] art 3.

[30] Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353.

[31] art 3.

[32] See para 16.11.

[33] Family Law Act Pt VII Div 7.

[34] s 66J.

[35] s 68F(2).

[36] eg Federation of Community Legal Centres (Vic) IP Submission 129; SA Children's Interest Bureau IP Submission 156; Burnside IP Submission 214.

[37] See para 16.11.

[38] See para 15.51.