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  • Writer's pictureJarrod Carter

Family Court Proceedings: Prioritising Children’s Best Interests

When dealing with matters of family law, especially those involving children, navigating the complex legal terrain can be challenging. Understanding how the Family Court operates in determining the best interests of the child is critical for families embarking on this journey. According to the Family Law Act 1975, the child's "best interests" is the paramount consideration in family law. This principle is deeply embedded in the Australian family law system and guides court decisions related to custody and visitation. This article aims to unpack the complexities of this principle and how it is applied in practice.

The Importance of Both Parents

One of the key principles underpinning the family law system in Australia is the recognition of the benefit to the child of having a meaningful relationship with both parents. This is provided it is safe and in the child's best interests. While the court's focus is on ensuring that both parents have an opportunity to play a significant role in their child's life, it doesn't imply that the child must spend equal time with each parent. The child's relationship with each parent, their age, maturity, understanding, and views are all important considerations when determining the frequency and nature of contact.

Safeguarding the Child: Protection from Harm

The safety and wellbeing of the child take precedence over all other considerations. The court has a legal obligation to protect the child from physical or psychological harm, abuse, neglect, or family violence. A parent's history of violence or abuse is a serious concern that the court will take into account when deciding on custody and visitation arrangements. If there's evidence that a parent poses a risk to the child's safety, the court may limit their contact with that parent or put in place measures to ensure the child's safety during visits.

Listening to the Child

The child's views can significantly influence the court's decision, provided they are old enough and mature enough to express their preferences. The court may use various methods to ascertain the child's views, including interviews or reports from child psychologists or social workers. However, it's essential to remember that while the court will consider the child's views, they are not the sole deciding factor. The court's primary concern is the child's overall best interests, not merely fulfilling their desires.

Encouraging and Maintaining Relationships

The court will consider how willing and capable each parent is in facilitating and encouraging a close and continuing relationship between the child and the other parent. If a parent is seen to be actively hindering the child's relationship with the other parent without justifiable reason, this could negatively impact their standing in the eyes of the court. The willingness of a parent to promote a positive relationship between the child and the other parent can demonstrate their commitment to the child's emotional and psychological wellbeing.

Mitigating Disruption: The Effect of Change

Family separation inevitably brings about significant changes in a child's life. The court considers the potential impact of these changes on the child, including changes in living arrangements, disruption to schooling, and separation from siblings or other significant family members. The court's aim is to minimize the detrimental effects of such changes and ensure continuity and stability in the child's life as much as possible.

Assessing Parental Capacity

Parental capacity is a broad term that encompasses many factors, such as the parent's ability to meet the child's physical needs, provide emotional support, guide the child's education, and raise the child in a nurturing, stable environment. Factors such as the parent's mental and physical health, financial stability, lifestyle, and capacity to provide a safe and suitable home environment are all relevant considerations.

The Child’s Background

Lastly, the court takes into account the child's age, sex, maturity, lifestyle, and background, including culture and traditions, when making its decision. Respecting and maintaining a child's cultural heritage can be an important aspect of their identity and wellbeing.

Family Court proceedings strive to be child-focused, prioritizing their safety, wellbeing, and holistic development. They aim to balance the rights, responsibilities, and needs of both parents and the child. Understanding these key considerations can provide valuable insight into how the Family Court operates, and hopefully, assist families in navigating this challenging and complex process. Professional help, such as family report writers, child psychologists, and independent children’s lawyers, is often involved in assessing these factors, aiming to reach a decision that serves the child's best interests.

Understanding this intricate process can offer families the knowledge they need to approach these legal proceedings more confidently, fostering an environment that supports the best interests of the child at its core.

Case Analysis: Goode v Goode

To further our understanding of how the Family Law Act 1975 operates in prioritising the best interests of the child, let's delve into a pertinent case study: Goode v Goode [2006] FamCA 1346. This case stands as an essential precedent in family law and provides valuable insight into how the court interprets the best interests of the child.

In this case, the Court was required to consider whether it was in the best interests of the children, aged 8 and 2, for them to live primarily with one parent or spend equal time with both parents post-separation. The father sought an order for equal shared parental responsibility and equal time with the children, while the mother argued for sole parental responsibility and for the children to live with her.

The Family Law Act 1975: Sections Taken into Account

The Family Court’s decision in Goode v Goode heavily referenced the principles outlined in the Family Law Act. Specifically, two sections of the Act play a significant role in outlining what constitutes the best interests of the child - Section 60CA and Section 60CC.

Section 60CA states that the best interests of the child are the paramount consideration when making a parenting order. This primary principle underscores all the decisions the court makes concerning children.

Section 60CC outlines the factors that the court must consider in determining what is in the child's best interests. These include (but are not limited to):

Primary Considerations: These factors are of utmost importance in deciding the child's best interests. They include the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

Additional Considerations: These involve factors such as the child's views, the nature of the child's relationship with each parent, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, the effect of any changes in the child's circumstances, the capacity of each parent to provide for the needs of the child, and the maturity, sex, lifestyle, and background of the child.

Interpreting the Best Interests of the Child: Goode v Goode

The Goode v Goode decision provides an excellent illustration of how the Family Court applies these principles to real-world scenarios. The Court carefully balanced the benefit to the children of having a meaningful relationship with both parents against any potential harm that could result from being exposed to conflict.

The judge emphasised the importance of the quality of the relationship between the child and the parent over equal time. Justice Kay stressed that while meaningful involvement in a child's life is more than just time, it doesn't necessarily mean equal or substantial time. The Court ultimately found that it was not in the children's best interests to spend equal time with both parents, due to the high level of conflict between the parents and the significant distance between their homes. The court also took into account the young age of the children.

The Goode v Goode case serves as a reminder that the primary focus of the Court's decision-making process is to safeguard the child's best interests. Every family's circumstances are unique, and there is no one-size-fits-all solution to these complex issues. The paramount principle remains the child's best interests, and it is this principle that will guide the court's decisions when it comes to matters of family law.

By taking into account the various aspects of the child's life, from their relationship with each parent to their cultural background, the Court seeks to ensure that the outcomes of family law proceedings are as beneficial to the child as possible. The complex, multi-faceted approach of the Australian Family Court allows for the intricate and individual circumstances of each family, keeping the focus where it should be: on the child.

Evidence in Family Court Proceedings

In any legal proceeding, evidence plays a vital role in assisting the court in reaching a fair and informed decision. Family law matters are no different. Providing robust, relevant, and reliable evidence can significantly impact the outcome of family court proceedings, especially those concerning the best interests of the child.

Why is Evidence Important?

The importance of evidence cannot be overstated. It forms the foundation of the court's decision-making process, shaping how the court perceives the facts of the case. Strong, compelling evidence can paint a clear picture of the family's circumstances, the child's needs, and the ability of each parent to meet those needs.

In determining the best interests of the child, the court relies heavily on the evidence presented to understand the child's circumstances. The court considers a range of factors – the child's relationship with each parent, the effect of change on the child, each parent's ability to provide for the child, and so on. It is the quality and substance of the evidence provided that allow the court to make an informed decision regarding these factors.

What Type of Evidence Assists the Court?

The type of evidence that assists the court in family law proceedings is wide-ranging, but fundamentally, it must be relevant to the issues at hand. Some key types of evidence that are often important include:

Reports from Professionals:

Reports from professionals involved with the family can provide invaluable insights. This might include reports from school teachers, counsellors, psychologists, or doctors who can provide information about the child's behaviour, academic progress, emotional state, and overall wellbeing.

Expert Testimony:

Expert witnesses, such as child psychologists or independent children’s lawyers, can offer their expert opinion on matters such as the child's views, the child's relationship with each parent, or the potential impact of certain decisions on the child.

Documentary Evidence:

This can include emails, text messages, or letters that demonstrate the nature of the relationship between the child and each parent, or between the parents themselves. School reports, medical records, or other official documents relating to the child's wellbeing can also be relevant.

Testimony from Witnesses:

Witnesses can provide first-hand accounts of relevant events or behaviours. This could include family members, friends, neighbours, or others who have had close contact with the family.

Affidavit Evidence of the Parents:

Here are the types of evidence that parents should consider including in their affidavits:

Parenting Capacity: The affidavit should demonstrate the parent's ability to provide for the child's physical, emotional, and educational needs. This can include examples of day-to-day involvement in the child's life, such as preparing meals, assisting with homework, taking the child to extracurricular activities, and providing emotional support.

Child's Relationship with Each Parent: The parent can describe the nature of the relationship between the child and each parent, providing specific examples that highlight the quality of the relationship.

Living Arrangements: Details about the child's current living arrangements and the proposed future arrangements can be included. This could incorporate the physical environment, the proximity to schools or other community resources, and the presence of any other family members in the home.

Health and Well-being of the Child: Any relevant information about the child's physical and mental health can be included in the affidavit. This might encompass reports or letters from healthcare providers or counsellors.

Views of the Child: If appropriate and depending on the child's age and maturity, the parent might include information about the child's views and feelings about the situation. This must be handled delicately, ensuring not to put any pressure on the child.

Communication between Parents: Evidence of communication between the parents, including email or text message exchanges, can be provided. This can demonstrate the level of cooperation or conflict between the parents.

Safety Concerns: If there are any concerns about the child's safety or wellbeing, these must be clearly articulated in the affidavit. This might encompass allegations of abuse or neglect, domestic violence, or other risks to the child.

Routine and Stability: The affidavit can include information about the child's routine and how the parent plans to provide a stable, nurturing environment. This might involve details about schooling, extracurricular activities, and social connections.

Financial Stability: Parents can provide evidence of their financial stability to show their ability to provide for the child's physical needs.

Cultural Considerations: If applicable, parents can discuss the child's cultural, linguistic, religious ties, and how they plan to support and maintain these.

Child Hearsay Evidence

In family court proceedings involving children, obtaining direct evidence from the child about their experiences and views can be challenging. Children may struggle to articulate their thoughts or may feel uncomfortable sharing sensitive information in a formal setting. In such cases, the court may consider hearsay evidence, including statements made by the child to a third party, as a means to understand the child's perspective. The admissibility of hearsay evidence from children is assessed on a case-by-case basis, with careful consideration of various factors.

Hearsay evidence refers to statements made by someone other than the witness who is testifying in court. Generally, hearsay evidence is considered less reliable than direct evidence, as it relies on the credibility and accuracy of the person who originally made the statement. However, the Family Court has recognized that hearsay evidence can be admissible in certain circumstances, especially when it involves statements made by children.

The admissibility of hearsay evidence from children is evaluated based on several criteria. The reliability of the hearsay statement and the credibility of the person who heard the statement are assessed. Factors such as the child's age, maturity, relationship with the person to whom the statement was made, and any potential motives for fabricating or distorting information are taken into account. The necessity of the hearsay evidence in providing a fair and accurate understanding of the child's experiences is considered, along with the opportunity to test the evidence through cross-examination.

While hearsay evidence from children may be admissible, its weight and significance in the court's decision-making process may vary. The court carefully evaluates the hearsay evidence, considering its consistency with other evidence, the context in which it was made, and any other relevant factors. The court also assesses the overall reliability and credibility of the evidence presented, taking into account the child's best interests.

It is crucial for parents involved in family court proceedings to seek legal representation to navigate the complexities of the admissibility of hearsay evidence and its potential impact on their case. Ultimately, the court aims to protect the child's interests when considering hearsay evidence. This includes ensuring that the child's statement is not unduly influenced, that they are not subjected to unnecessary trauma or distress, and that their voice is heard and given appropriate weight in the decision-making process. The court strives to make decisions that prioritize the child's best interests based on the available evidence, whether it be direct or hearsay.


In conclusion, the best interests of children stand as the paramount consideration in family court proceedings, guiding decisions regarding custody, visitation, and other matters. However, it is important to recognize the limitations of the family court system in ensuring these best interests are fully met.

One limitation lies in the court's inability to definitively determine if one of the parties is lying. The adversarial nature of the legal process, combined with the complexities of human behavior, can make it challenging for the court to uncover the truth in every instance. Despite rigorous cross-examination and the presentation of evidence, there may be instances where dishonesty goes undetected, potentially impacting the child's best interests.

Additionally, child psychology is an ever-changing field, constantly evolving with new research and understanding. While the court may rely on expert witnesses, such as child psychologists, their opinions are based on the current understanding of child development and psychological well-being. As knowledge advances, there may be areas where the court's decisions could benefit from ongoing updates and adjustments to align with the latest research.

Another limitation lies in the fact that magistrates and judges do not directly speak with the children involved to obtain their views. Instead, the court relies on reports and evidence provided by professionals, as well as the interpretation of these by the legal representatives involved. While efforts are made to assess the child's wishes and experiences through various means, such as family reports or interviews, the indirect nature of these communications introduces an additional layer of subjectivity and potential for misinterpretation.

Furthermore, the subjective biases of magistrates and judges can inadvertently influence decisions regarding the best interests of children. Despite their training and expertise, personal beliefs, values, and unconscious biases can shape their perceptions and judgments. The court system must continually strive for transparency, fairness, and ongoing training to mitigate the impact of these subjective factors.

Lastly, the cost of legal fees and the complexity of family court processes can act as barriers to justice, particularly for those with limited financial resources. Access to quality legal representation and the ability to navigate the complexities of the legal system can significantly impact a party's ability to present their case effectively and ensure the best interests of their child are fully considered. Efforts to improve accessibility and affordability within the legal system are vital to uphold the principles of justice for all families involved.

While the family court system in Australia is dedicated to protecting the best interests of children, it is essential to acknowledge these limitations. Continued efforts to address these challenges, including advancements in forensic techniques, ongoing professional development for judges, and improved access to legal resources, are crucial for ensuring that the best interests of children remain the central focus of family court proceedings. By recognizing and addressing these limitations, we can strive towards a more effective and equitable system that better serves the needs of children and families.

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