Court's role in determining child's best interests under Family Law Act

¶ … Family Law Act a court must take into Account ' the best interest of the child'. What does this mean? What are the factors the court is to consider in determining the best interests of the child and how do these operate? (200-500 words)

In short, the best interest of the child as defined by most courts is what will serve the child's interests best, at least in the short-term, and whether the child's current domicile and situation is the best fit involved. If the current parent(s) or guardian situation is not the best available option and/or the parent/guardian is obviously or even ostensibly unwilling or unable to provide the needed care that the child needs. This need can be borne of neglect or it can be based on outright abuse on the part of the parent or guardian. This situation can also arise if there are people or situations around the child that put them in imminent danger of harm such as drug use/dealing, alcohol abuse, spousal/domestic abuse, presence of a sex offender in the house with the permission/consent of the parent/guardian or anyone else in the house and so forth.

The removal of a child from their normal parental orientation can be either temporary or permanent in nature and it may vary from time to time how exactly that all plays out. Generally, the relevant agencies and personnel will play it by ear and if the child is deemed to be safe with the parent because they correct any deficiencies that led to the child being seized in the first place, then a reuniting may be done. However, this is not assumed to be the cause nor is it ever automatic and the parent can always lose custody again assuming they ever get it back in the first place once they lose it. It all comes down to what will serve the child best long-term in terms of their health, schooling and the overall health of their upbringing.

That all being said, courts cannot get into all the minutia and some cases come down to values and personal values rather than the law. Such situations require a huge amount of discretion because not all controversial or questionable situations demand removal. However, if the health or ongoing well-being of the child is in question, removal (temporary or permanent) is on the table.

As for other factors that can come into play, those would include who referred the matter to authorities as many people that do so are concerned family members such as uncles, aunts, grandparents and in-laws. Reports can also come from third parties or even be the result of incidental observance from police officers and other public officials that are required or allowed to report parental malfeasance should it occur.

Regardless of the reporting person, the accuracy, verifiability and veracity of the report will be reviewed and verified as much as is possible with a final or at least preliminary decision being made as to whether the child should be removed or not.

2. On what grounds does the court still retain the right to vary the provision of a parenting plan if it considers it is in the best interest of the child? (no more than 50 words)

In short, this would happen if a parenting plan provision clearly runs counter to the general welfare and ongoing safety of the child. For example, a child that has visitation with a parent that is verifiably drugs would often be struck down to protect the child.

3a) What is the definition of 'parental responsibility' in the children and Young Persons (Care and Protection) Act 1998 (NSW) and compare this to the definition in the Family Law Act (FLA).

"In relation to a child or young person, means all the duties, powers, responsibilities and authority which parents have in relation to their children."

http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s3.html

"…parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61b.html

Obviously, the definitions are very similar with only several words being different. The latter has the distinct phrase "by law" whereas the first one does not. The differences here are more with the broader laws themselves rather than parental responsibility. The FLA has a much broader scope than the other act but their definitions of parental responsibility are very similar.

3b) Summaise the 'Participation Principle'

In a nutshell, it refers to the choice being given to a child to participate and voice their desires in a proceeding. This includes expressing their views, how their views will be used during the proceedings and so forth.

3c) summarise sections 71 and 72 in the Children and Young Persons (Care and Proteciton) Act 1998(NSW)

Section 71 is grounds for care orders and there is a subsection in there for conduct that occurs outside of New South Wales. Section 72 is the determination as to care and protection. The former lists out reasons why a child may be removed and placed into care including physical or sexual abuse, obvious neglect, absent of a caretaker and so forth. Section 72 covers the consideration and how a court may approve or deny a care order suggestions/application.

3d) summarise the provisions of the Act which set out principles relating to Aborigianl and Torres Strait Islanders

Part II of the act covers self-determination, participation in decision-making, Place Principles and record keeping. Section 32 in part III covers the initial self-identification of aboriginals and how that pertains to and affects organizations. Part 167 in part 6 covers record keeping as it relates to arrangements on leaving statutory out-of-home care. The definition of aboriginal peoples is noted in section 5 within chapter 1.