It’s about a child’s future, not just the past
May 12, 2020 /

in determining the appropriate relationship which a child should prospectively have with a parent, family law proceedings tend to look to the future, rather than allowing the historical relationship which a parent has had with a child to be determinative.”

This brief line from a recent judgment of the Family Court of Australia encapsulates a key aspect of parenting Orders.

Family law judges are tasked by law with making Orders which are in the best interest of the child. There are two primary considerations which tend to be summarised as being the benefit to the child of having a meaningful relationship with both parents, and assessing the risk of harm to the child in doing so.

In this particular case, the court was considering the benefits of a meaningful relationship between the child and a father. The mother had undoubtedly been the child’s primary carer and attachment, however the Court was asked to consider orders which both stopped any relationship between the child and the father, or alternatively Orders which allowed for the development of a greater relationship between the child and his father than had been the case in the past.  There were also allegations of harm, which were denied. The Court made Orders extending the child’s time with the father and these were appealed.

The appeal Judge considering the matter made this comment;

“… Ultimately it was quintessentially a matter for the primary judge as to what weight she gave to that matter. It is plain that she gave it some, but not determinative weight. That is unsurprising, since in determining the appropriate relationship which a child should prospectively have with a parent, family law proceedings tend to look to the future, rather than allowing the historical relationship which a parent has had with a child to be determinative.”

In considering what is in the best interest of the child, this can take into account not only what this child’s life has been like and is like now, but also look to the future and the relationship that the child should have.

It’s about what’s in their best interest.

For the full reference: Shaw & Shaw [2020] FamCAFC 80 (9 April 2020).

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