CHILDRENS RIGHTS NOT PARENTS RIGHTS

In a recent published case Golby & Nayar [2014] a Federal Circuit Court Judge comment that “The Family Law Act 1975 recognises that children have a right to know and be cared for by both of their parents, and it is very important for children to have both parents in their life if possible, but these are children’s rights, they are not parents’ rights, and while it is good for children to have both parents in their lives there are occasions when one parent is a poor role model or is likely to place the children at risk of harm and therefore that person is not a good person or a safe person to have in the children’s life.”

In short the father wanted the mother to bring a young child to a prison for visits whilst he was in prison.  The father had a long history of offending and has committed acts of family violence against the mother which included physical violence and which caused her injuries.  The case is not a long one and is easy to read if you want to read all of the relevant facts.

The judge followed through those matters required to assess the best interests of a child under the Family Law Act namely the primary considerations in s.60CC(2)being the benefit to the child of having a meaningful relationship with both of the child’s 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.  He noted that “S.60CC(2A) says that I must treat the consideration about the child not suffering physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence as more important than the consideration about her having a meaningful relationship with both of her parents. That was a change to the law which came into effect on 7 June 2012 because of a concern about whether Courts were treating seriously enough the issue of family violence which sadly is rampant in our community.”

Comment

The Judge ultimately decided that he would not order that the child spend any time with the father whilst he was in jail and that this could be revisited upon his release from jail.  It should be remembered that the primary concern of judges, family lawyers and family dispute resolution practitioners must always be what is in the child’s best interests and to promote the objects of the Family Law Act.  its just common sense really that parents need to focus on the needs of their children and not necessarily their own needs to achieve the very best outcomes for their children following separation.

Do you agree with what the judge decided?