NSW What Does Family Court Consider the Best Interest of the Child?

[Tony.Walsh]

Following is copied from another thread:

To get custody of children, the father would need to show that it's in the child's best interests to live with him, and that the child's best interests are not currently being met living with the mother. What the family court considers when deciding what's in a child's best interests is listed under section 60CC of the Family Law Act 1975.

Can the following be regarded as best interest for the child?

- Being able to provide a better environment (eg. renting an apartment where father can lives with kid assuming kid is around 2 years old compared to the other party that rent a shared apartment)
- Being able to support the kid intellectually (eg. speaks good english, blend into community, have a good degree compared to the other side)
- Being able to financially support the kid (eg. have a stable part-time work compared to the other side that leech off child support and refuse to give more time to father, and leech off Centrelink)
- Sacrifice full-time job in order to be able to spend more time with kid

During mediation, the father was told by the mediator that it doesn't work that way and since the father is capable of earning higher income, the father should work and supply the other side. I am not sure how this is fair to the father, just because the father can generate income doesn't mean that the father cannot spend overnight and being treated like an ATM.

 

[AllForHer]

First, you must read the relevant section 60CC here: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html Don't be overwhelmed by it being legislation. It is very easy to understand, even if you have no other experience in law.

I'll be honest and personal in this post, so try not to put too much weight on it in terms of legal direction.

You're looking at this with a competitive attitude, which is a very common approach taken by parents when they first enter the family law system, but you will learn soon enough that a competitive attitude is not what the court wants from you. What it wants is for you, as parents, to find a way to co-operate, because that's what is absolutely best for the child.

The child is two and has been under the primary carership of the mother for two years, is that correct? It's safe to assume, then, that the child's primary attachment figure is the mother. That doesn't mean the mother is more important or more capable. It just means the child has been more dependent on her for survival, and it's a psychology term that should not be taken personally. As children get to about three years of age and older, their network of attachment figures grows, and instead of having one primary attachment figure, they are more capable of having two or three or four attachment figures organised into a sort of hierarchy.

In layman's terms, the child will be more open to spending time away from the mother and instead with you, the father.

This cognitive development, however, happens gradually - the older they get, the better they cope, such that kids of around four and five and six can comfortably spend seven nights away from the primary attachment figure without experiencing any separation anxiety (provided they have developed a secure attachment to the other parent).

As such, would it be in the child's best interests, at two years of age, to uproot them from their primary attachment figure, routine and familiar surrounds to live on a permanent basis with someone they currently only spend eight hours a fortnight with? Probably not. Psychology studies have consistently shown that children even under threat of being removed from the primary attachment figure, tend to show severe signs of distress and anxiety, so I think you would be better off accepting that perhaps it's not in the child's best interests to subject them to that.

Your arguments, while well-intended, will not be given much weight in court because they're really just differences in parenting styles and arguments to impress the court, rather than genuinely what's in the child's best interests.

What I implore you to do is think about what really is best for your child. She needs both parents. She's comfortable in her current household with the mother. She's likely very emotionally attached to her. She also deserves to grow up emotionally attached to her daddy, too. She deserves to have the love and support of a father, against whom all other men in her life will be judged.

To me, that says plenty of time with both parents. It doesn't say change in residency.

So how do you argue this?

Tell the court why the existing arrangements are not in your daughter's best interests, and tell the court why it is in your daughter's best interests to spend more time with you.

Don't go in fighting for residency. You're unlikely to get it unless the mother has placed the child at serious risk of harm, and it's very likely to make any possibility of a co-parenting relationship entirely unattainable. Go in seeking to co-parent fairly and do what's best for your daughter.

 

[Tony.Walsh]

Thanks for your reply.

A bit of the story first. I've been around with my kid until she's about 1 and 3 months old. The other side then took the kid away due to property dispute. The other side has been with my kid since then (for a bout 9 months now). I have been trying to get a hearing since then. I've been through mediation and have the s60i certificate. A slot has been allocated end of this year, but this is just a "direction hearing" for parenting.

Are there any chance still for me to fight for residency? It is definitely not for the child best interest that the other side took away my kid without my consent (I do not have the other side address, it was deliberately kept a secret). Any chance I can argue about this?

Now the other side is arguing that :-
- the kid is more attached to her as she spend 9 months exclusively with her (me being granted only approximately 8 hours per week, started off with 3 hours under supervision. After a lot of legal letters it was then increased to 8 hours per week)
- the kid (now around 2 years old) is still breast feeding and hence not suitable to spend overnights or more time with me

Another issue is with the court system. It took me about half a year to get a "direction hearing". After the "direction hearing" it might take half to one year for an actual trial and if it takes 3 trials (each half a year apart), it will take me ages to be able to spend more time with my kid. Is this a loop hole with the legal system that the other side is exploiting? Any chance of speeding this up?

If I fight for co-parenting now can it be later done for residency? If the kid is older, surely the kid willingness to stay with witch ever side should be taken into consideration is that right? How does this work? Is there a link for me to read up more?

Thanks a lot.

First, you must read the relevant section 60CC here: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html Don't be overwhelmed by it being legislation. It is very easy to understand, even if you have no other experience in law.

I'll be honest and personal in this post, so try not to put too much weight on it in terms of legal direction.

You're looking at this with a competitive attitude, which is a very common approach taken by parents when they first enter the family law system, but you will learn soon enough that a competitive attitude is not what the court wants from you. What it wants is for you, as parents, to find a way to co-operate, because that's what is absolutely best for the child.

The child is two and has been under the primary carership of the mother for two years, is that correct? It's safe to assume, then, that the child's primary attachment figure is the mother. That doesn't mean the mother is more important or more capable. It just means the child has been more dependent on her for survival, and it's a psychology term that should not be taken personally. As children get to about three years of age and older, their network of attachment figures grows, and instead of having one primary attachment figure, they are more capable of having two or three or four attachment figures organised into a sort of hierarchy.

In layman's terms, the child will be more open to spending time away from the mother and instead with you, the father.

This cognitive development, however, happens gradually - the older they get, the better they cope, such that kids of around four and five and six can comfortably spend seven nights away from the primary attachment figure without experiencing any separation anxiety (provided they have developed a secure attachment to the other parent).

As such, would it be in the child's best interests, at two years of age, to uproot them from their primary attachment figure, routine and familiar surrounds to live on a permanent basis with someone they currently only spend eight hours a fortnight with? Probably not. Psychology studies have consistently shown that children even under threat of being removed from the primary attachment figure, tend to show severe signs of distress and anxiety, so I think you would be better off accepting that perhaps it's not in the child's best interests to subject them to that.

Your arguments, while well-intended, will not be given much weight in court because they're really just differences in parenting styles and arguments to impress the court, rather than genuinely what's in the child's best interests.

What I implore you to do is think about what really is best for your child. She needs both parents. She's comfortable in her current household with the mother. She's likely very emotionally attached to her. She also deserves to grow up emotionally attached to her daddy, too. She deserves to have the love and support of a father, against whom all other men in her life will be judged.

To me, that says plenty of time with both parents. It doesn't say change in residency.

So how do you argue this?

Tell the court why the existing arrangements are not in your daughter's best interests, and tell the court why it is in your daughter's best interests to spend more time with you.

Don't go in fighting for residency. You're unlikely to get it unless the mother has placed the child at serious risk of harm, and it's very likely to make any possibility of a co-parenting relationship entirely unattainable. Go in seeking to co-parent fairly and do what's best for your daughter.