«IN THE BEST INTERESTS OF THE CHILDREN: A PERSEPCTIVE OF THE 2006 AMENDMENTS TO THE FAMILY LAW ACT The Hon. John Faulks Deputy Chief Justice, Family ...»
There are some matters which might be said without detracting from the reality that each case must be considered on its own terms and evidence and ultimately any decision made must be in the best interests of the child or children with all the difficulties and circularity that brings.
First, as I mentioned earlier, it appears that equal shared parental responsibility and equal time or substantial and significant time are less likely to be ordered in contested proceedings before the Family Court.
Where the Court declines to make such orders, those considerations will not impact on the relocation proposal and the decision whether or not to permit a parent to relocate will be made on the basis of the „best interests‟ test, having regard to the objects of the Act, the principles underlying those objects and section 60CC factors.
The most significant potential obstacle for relocation is the concept of meaningful relationships. This I have explored previously and will mean something different to each child. It may be possible for a child and a parent to be able to have a “meaningful” relationship across distance, or it may not be. There may or may not have been a particularly meaningful relationship between the child and one parent post-separation or the relationship may have been destructive for the child and is unlikely to improve over time. It may be that the benefits of relocation are more pertinent to the child‟s best interests than the benefit of a meaningful relationship.
I also wish to emphasise that before a court can make an order that a child spend equal time with a parent, or substantial and significant time, the court must be satisfied such an order is in the child‟s best interests and reasonably practicable.32 The term „reasonably practicable‟ is defined in
section 65DAA(5) of the Act. It requires the Court to have regard to:
The recent Full Court decision in Sampson & Hartnett (No 10),33 whereby an appeal was allowed on the basis the trial judge failed to consider the reasonable practicability of arrangements she then went on to order, demonstrates that „reasonable practicability‟ is an important part of the deductive process judges must follow.
Where a parent is seeking to relocate with a child and the court applies the presumption of equal shared parental responsibility, or where the party opposing the relocation is seeking a substantially shared living arrangement, the court must be satisfied of the practicability of such an arrangement before making the order sought.
Although some of the new provisions (such as those mentioned above) may seem to set relocation cases apart, there is no special category of Ibid s 65DAA(1)(b), (c); s 65DAA(2)(d), (e).
 FamCA 1365.
„relocation cases‟. The abiding criterion is “the best interests of the child” and although relocation complicates the consideration of what is best for the child it does not require or indeed allow for a different approach by judges.
The second point is that equal shared parental responsibility may be able to be exercised across distance. If communication and cooperation between the parents is sufficient to conduct a „business-like‟ relationship, it may be that an order for equal shared parental responsibility is possible.
Thirdly, the best interest factors in section 60CC are carefully considered by the Court and as such if relocation is in a child‟s best interests, that is what will be ordered. This is the same position as before the amendments to the Act.
The Less Adversarial Trial Among the changes made to children‟s law by the Amendment Act was the introduction of Division 12A. This Division contains principles for the conduct of less adversarial proceedings in children‟s cases. The Family Court of Australia gives effect to Division 12A through the Less Adversarial Trial (LAT) process. As Professor Chisholm observed in a recent article, the words “less adversarial” refer to court proceedings that depart in significant ways from the distinctive, traditional common-law model of court proceedings.34 One of the benefits of LAT is that the judge is actively involved in running the case, including refining the issues in dispute and directing the Richard Chisholm, „Less Adversarial Proceedings in Children‟s Cases‟, (2007) 77 Family Matters 28.
evidence to be filed. Additionally, many of the rules of evidence (such as the hearsay rule) do not apply unless the Court forms the view that special circumstances exist that warrants their application. This is frequently the case where the matters in issue may require a determination that one party has committed a criminal act or other serious allegations are made and the interests of justice and fairness require a more traditional approach to some parts of the evidence.
The benefit is proving to be substantial even in complex cases. By taking control away from the lawyers and speaking directly with the parties, judges are often able to get a perception of the relationship between the parents, the aspirations the parents have for the children and what the matters really in dispute may be.
In summary, while the legislature has injected more direction into the process of making orders about children, the basic and overarching principle of the best interests of the child prevails. Each case must be considered on its on merits and all relevant evidence must be evaluated.
The fact that some parents have their disputes determined in the Family Court will probably indicate that the process of finding facts, evaluating factors and balancing these matters to arrive at a conclusion will regularly give rise to disagreement about the outcome from one, if not both, parents.
Perhaps what is of more concern for the future are those who bargain in the shadow of the law. The Court and, to some extent the legislature, cannot know if agreements reached outside the court system have been arrived at with knowledge and understanding of what the law is. Sadly, the more prescriptive the law, the less the average citizen may appreciate and understand it and perversely the more likely it is that parties may make decisions contrary to the intention of the legislature because of the inaccessibility of the law.
That having been said, the objectives and the principles of the new legislation are unimpeachable for those who are able to cooperate, communicate and collaborate without fear and who are able to put the interests of their children ahead of their own interests following the breakdown of a relationship. The Family Court will continue to find ways to work with parents and the legislature in the best interests of the children but will do so recognising that every child is an individual and every case is different.