Editor's Note

In our last article, we talked about how a "binding property agreement" with independent legal advice from a lawyer can effectively protect the personal property rights and interests of both parties to a registered licensed marriage or de facto (de facto marriage). When the relationship breaks down, in addition to the division of property and other issues, the two parties in the relationship may also face the issue of child custody. At this point, special attention needs to be paid to the "golden clause" of Australian family law on child support-"in the best interest of the child" (Child's best interests).

Author/Huixiang Sydney Law Firm

According to Australia Family Law Act 1975(cth) S60CAThe court must "in the best interests of the child" when deciding on the custody of the child"（Child’s best interests）as the primary consideration.

“60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

At the same time, accordingFamily Law Act 1975(cth) S60CCIn determining the principle of "in the best interests of the child", the Australian court must first consider the legal need to protect the child from physical or psychological harm, especially abuse, neglect or domestic violence. Under the premise of not being harmed, the child should also maintain a meaningful relationship with both parents. In the event of child abuse or domestic violence by one of the parents, the principle of equal distribution of parental obligations in Australian family law at this time（equal shared parental responsibility）It will no longer apply.

60CC How a court determines what is in a child’s best interests

(1)…in determining what is in the child’s best interests, the court must consider the matters set out in subsections(2) and (3).

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In addition, when determining "in the best interests of the child", the court must consider in addition to the above-mentioned important factors that must be considered:

(1) Any opinion expressed by the child, and any factors that the court considers relevant to the weight that should be given to the child's opinion (such as the child's maturity or understanding);

(2) The relationship between the child and his parents and other people (including grandparents or other relatives);

(3) Parents' performance in dealing with the child (including whether they are involved in decision-making on major issues related to the child, time spent with the child, communication with the child, and parents' performance in supporting the child);

(4) The possible impact of any changes on the child (including separation from one of the parents or from other relatives);

(5) the practical difficulties and costs of getting along and communicating with one of the parents, and whether such difficulties or costs would seriously affect the right of the child to maintain a personal relationship and direct contact with both parents on a regular basis;

(6) The actual ability of the child's parents (and their respective relatives) to meet the child's needs, including financial and emotional;

   ……

“ (3)  Additional considerations are: 

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; 

(b) the nature of the relationship of the child with: 

(i)  each of the child's parents; and 

(ii) other persons (including any grandparent or other relative of the child); 

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: 

(i) to participate in making decisions about major long-term issues in relation to the child; and 

(ii)  to spend time with the child; and 

(iii)  to communicate with the child; 

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;”

  ……

It can be seen that according to Australian law, the primary consideration for "in the best interests of the child" is whether the child will be physically or psychologically harmed, and then the child's own thoughts, feelings and opinions, as well as the living environment and other factors will be considered.

During the new coronary pneumonia epidemic, in order to prevent the spread of the epidemic, Australian states issued blockade orders. For example, the government of New South Wales, Australia, announced on June 26, 2021 that four administrative regions, including Sydney, would implement blockade measures from now on. This will lead to the problem of child custody if couples living in different cities are facing the problem of child custody (such as item (4) above), which is full of various uncertainties in special periods, how does the court determine the "best interests of the child" when both parents are separated by the epidemic? We will use the following cases to illustrate for you.

Kurata & Commissioner, Western Australia Police [2021] FedCFamC1A57In one case, a man settled in the UK won an appeal from the Australian Family Court's decision on who the child was living.

The basic situation in the case is that the child's father and mother work in the UK and Australia respectively. In 2015, due to the father's improper behavior, the parents separated. The two parties agreed that the child would live with the mother, but regularly live with the father for a period of time. In 2019, the mother redesignated her place of residence.Country AofArea BMy father still lives.Country AofArea A. In 2020, the father agreed to take the child to Australia to visit his grandparents, but he needs to return before the start of school in the UK on September 1. But at that time, Britain was in the midst of an epidemic, so the mother said in the first instance that she would decide whether to send her child back to Britain based on the epidemic situation in Britain. But then in mid-August 2020, the mother informed the father that she would return the child to the UK at the end of August. However, when the school started in the UK, the mother left her child with her and claimed that she would not be able to send her child back to the UK until the epidemic was over. But then a series of actions by the mother showed that she wanted to keep her children in Australia, such as applying for leave from the British company she worked for, buying a car in Australia, and so on. And in December 2020, the mother still hasn't sent the child back after the father confirmed he would not be harmed when he returned to the UK. The father then appealed. The court of first instance ruled that the mother should return the child to the UK, after which the mother appealed but was quashed by the Australian Family Court.

The Australian Family Court rejected the appeal on the grounds that, first, the father and mother had agreed to return the child before the start of school in the UK, which could be presumed to be an implied agreement and should therefore be complied with by the mother. Secondly, for children, the daily residence is the UK rather than Australia, and the epidemic will not last long, so the epidemic cannot be used as a reason to prevent children from returning to the UK. It can be seen that the factor considered by the Australian Family Court in determining the principle of "in the best interests of the child" in this case is the child's daily residence, that is, the uncertainty that may arise in the child's life in the new country.

InBergmann & Bergmann [2022] FebCFamC1A38In one case, the Australian Family Court similarly ruled on this basis that a French mother had the right of residence with her child. The facts of the case are roughly the same as those above, but the difference is that in this case, the court of first instance made an interim decision to allow the children to live on an alternating monthly cycle with both parents in Australia and France for the same amount of time, but in the same year the court again stated that they were "worried about the children movingBThe city may lead to unstable living conditions for children and hinder their growth "and" the country where the mother lives is affected by the epidemic "on the grounds that children live in Australia with their father.

The mother then appealed and made a six-point claim, but the Appeals Chamber only upheld the mother's fifth claim, that the father had the means and time to visit the child in France, contrary to the trial judge's finding of fact and evidence. Accordingly, the Appeals Chamber remanded the case for retrial, but the outcome is not yet known.

In summary, through the above two cases, we can see that when it comes to determining "in the best interests of the child" due to epidemic restrictions or other force majeure conditions, the court considers the uncertainty of the child going to another country to restart his life. And this point can also play a certain reference role for more and more cross-border divorce cases. So, after determining the considerations of "for the best interests of the child" and determining the ownership of custody, how should the custody of both parents be distributed?

In China, both parents can negotiate or resort to the court to resolve the issue of the custody of the child. After the resolution, although the custody of the child will belong to the father or the mother, the party who has not obtained the custody still has the custody, education, and education of the minor child. The obligation to protect. At this point, however, the rights of the party with custody are greater than those of the party without custody, I .e., the rights of the two parties are not equal.（equal）.

According to Australia.Family Law Act 1975(cth) 61DAThe Australian courts are presumed to apply the equal distribution of support rights when allocating the custody of both parents (Presumption of equal shared parental responsibility, I .e., equal sharing of the burden of support). In Australia, anyone who is a parent of a minor under the age of 18 is considered responsible for the maintenance of the child, even if the relationship arises through adoption. This presumption encourages cooperative child-rearing by giving parents an equal say in the long-term decisions that design the child.

However, as mentioned above, this presumption will also be overturned if one parent has domestic violence, abuse and other situations that seriously harm the interests of the child. It is also worth noting that Australian family law stipulates that this presumption only applies to the obligations and rights of both parents to the child, but does not mean that both parents should be accompanied by the child for equal time.

“61DA (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section61B.”

AccordingFamily Law Act 1975(cth) S65DAAIf the equal time of the parent and the child cannot meet the principle of "in the best interests of the child" or is reasonable in practice, it cannot be presumed that the parent should accompany the child for the same time. At this time, it is necessary to consider the substantial company of parents and children, such as holidays, festivals or special anniversaries.

65DAA Equal time

(1)…, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable;

……

Substantial and significant time

(2)…if:(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

in the caseMRR v GR [2010] HCA4The child's mother wanted the child to live with her in Sydney, while the father returned to Queensland, which is far away from Sydney, due to work needs. The court held that it was not practicable to give children and their parents equal time together because of the distance between Sydney and Queensland. Therefore, after comprehensively considering various factors such as the remote place where the father lives, the inconvenience of renting a house, and the fact that moving to live with the father will reduce the quality of life of the child, the court held that although both parents should "share the responsibility of raising equally", However, considering reasonable feasibility, giving both parents equal company time is not in line with the maximization of children's interests.

To sum up, in Australian family law, the court must take "in the best interests of the child" as the primary consideration when deciding the custody of the child. When determining "in the best interests of the child", the court must first consider whether the child will be physically or psychologically harmed, and then consider the child's opinion, the child's living environment, and the child's ability to communicate with relatives and costs. However, if the living environment is full of uncertainties in a special period, the court will take the child's daily residence as the primary consideration in determining "in the best interests of the child. After determining the ownership of the child's custody, according to the principle of equal sharing of custody responsibilities, both parents have equal custody obligations and rights for the child, but whether the custody time is equal is also based on whether it is in the "best interests of the child" and in the actual Reasonable feasibility and other factors to determine.

In the next article, we will review the current personal safety protection orders that protect women from domestic violence in Australia, namelyAVO, to elaborate. If you have any questions about Australian family law, please consult Huixiang Sydney Law Firm.

Note:The content of the above article is for reference only and does not constitute legal advice. If you have any legal questions, please consult with Huixiang Sydney lawyer in detail.

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