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The ‘Best Interests of the Child’ Test – Saunders and Yorke [2022] FedCFamC1A 54

Much of the case law and legislation in family law turns on a test that asks the Courts to look at what it is in the best interests of the child. This inevitably sees the Courts having to balance a range of factors and issues – including (but not in any way limited to) child and parent wellbeing.  The answers reached by the Court will always depend on the individual facts and circumstances of each case – and no two cases will be the same. That said, it is useful for those who have to look at this test (allied health experts, family reporters, parents) to understand how the test is applied in real life cases and where the Courts drew the line in the sand. This blog is one such example.

In this case, the Full Court of the Federal Circuit and Family Court of Australia (the ‘FCFCoA’) looked at the complex test of what is in the ‘best interests’ of a child. This is the test that forms the cornerstone of the Court’s decision making in family law with respect to children and family law disputes. For this reason, application of the ‘best interests’ test by the Court in any instance is useful and instructive for lawyers parenting matters, and the parents involved in those matters.

In this matter, the appellant father sought to challenge final parenting Orders which ceased his contact with the children. At first instance, the primary issue was whether the father’s paraphilia (a condition characterised by abnormal sexual desires, typically involving extremely dangerous activities) exposed the children to a risk of harm. The primary judge determined that:

  • The father posed a risk of harm to the children.
  • Even supervised time with the children was inappropriate.
  • The children were to spend no time alone with the father.
  • There was nothing to give confidence that the father would abide by any of his own proposed restraints. This was based on the advice of the single expert whose view was that the proposed restraints were insufficient to mitigate the risk the father posed to the children.  Likewise, that expert further said that he had ‘real concerns’ that the father would be able to contain his behaviours during periods of time with the children.
  • The mother was to have sole parental responsibility.

On appeal, the father contended that the primary judge did not give proper consideration to the ‘best interests’ of the children test under s60CC(2) and s60CC(3) of the Family Law Act 1975 (Cth).

The Full Court of the FCFCoA held that the primary judge:

  • Had engaged in a proper ‘best interests’ analysis by determining that the risk to the children of losing a relationship with their father was adequately balanced against the risk posed by their father’s behaviour and associations.
  • Was right to observe that the children would also be likely to experience humiliation, ridicule, and psychological harm if the father’s behaviour and links to the community of people with similar activities were to be exposed
  • Had provided full and clearly set out reasons for her decision that the mother should not have to take into account the father’s views when making long-term decisions about the care of the children.
  • Had correctly decided that the father should not be involved in parental responsibility decisions.

McClelland DCJ, Austin and Schonell JJ indicated that an appeal should not be viewed as a rerunning of the case as presented before the primary judge in an endeavour to convince the Court that it should, in the absence of any identifiable appealable error, come to a different determination.

The Appellate judges also held that was illogical to contend that the primary judge imposed a requirement to engage in therapy when no such order was made.

For practitioners, the case is an important reminder of the need to fully substantiate, with reliable evidence and experts, any proposals relating to the ‘best interests’ analysis under s60CC of the Family Law Act 1975 (Cth) – for the now and into the future.

By Nicholes Family Lawyers


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