In February I presented for Television Education Network about defining the best interests of the child in Family Law parenting matters. Here is my paper:
Defining best interests of the child in
family law parenting matters
family law parenting matters
Stephen Page[1]
INTRODUCTION
Of course we often bandy about the term best interests of a child on a daily basis, but it is good to remember where it comes from. Section 60CA of the Family Law Act merely says:
“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.”
The term best interests is a variant of several terms used over the years, but ultimately the current form comes from the International Convention on the Rights of the Child.
Given that it is a particular difficult Convention to find on the web, I have put the Austlii reference in the footnote[2].
The language of best interests is taken from Article 3 of the Convention:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall confirm with the standards established by competent authorities, particularly in the areas of safety, health, and the number of suitability of their staff, as well as competent supervision.”
Section 60B, which I am sure that you are well familiar with, sets out the objects of Part VII of the Act. Much of the language of section 60B comes directly from the Convention.
The provisions with which we are all too familiar:
Section 60B(2)(a) and (b):
“The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).”
Article 7.1 provides:
“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”
Article 8.1 provides:
“States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Article 9.1 provides:
“States Parties shall ensure that the child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
Article 9.3 provides:
“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both contacts on a regular basis, except if it is contrary to the child’s best interests.”
Article 10.2 provides, relevantly:
“A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country…”
Often we forget about the Convention but one of the additional objects of Part VII, by virtue of section 60B is to give effect to the Convention.
The Convention is not part of our domestic law, as the High Court made plain in Teoh’s case (1995)[3]. Mason CJ and Deane J stated at [25] – [29] as to the status of the Convention in Australian law:
“25. It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, and not the executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way…
26. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
27. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.
28. Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the court should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose to which it is intended to serve and its relationship to the existing principles of our domestic law.
29. In the present case, however, we are not concerned with the resolution of an ambiguity in a statute. Nor are we concerned with the development of some existing principle of the common law. The critical questions to be resolved are whether the provisions of the convention are relevant to the exercise of the statutory discretion and, if so, whether Australia’s ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention. The foregoing discussion of the status of the Convention in Australian law reveals no intrinsic reason for excluding its provisions from consideration by the decision-maker simply because it has not been incorporated into our municipal law.” (Emphasis added)
Their Honours then go on to say at [31]:
“The concluding words of Art.3.1 are “the best interests of the child shall be a primary consideration” (our emphasis). The article is careful to avoid putting the best interests of the child as the primary consideration, it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.”
An example of where legitimate expectation was the recent decision of Forrest J in Sigley and Sigley [2018] FamCA 3. This concerned the registration of a US surrogacy order under section 70G of the Act. The machinery provision to enable registration is under reg.23 of the Family Law Regulations. In considering whether to exercise his discretion to allow the order to be registered, Forrest J stated at [33]:
“The two children are both Australian citizens now as well, with legitimate expectations that the legal nature of their parent-child relationship with both of their loving parents is appropriately recognised in this country of theirs.”
A provision of the Convention which I believe has attracted too little attention in Australia is Article 8.1:
“States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
We often talk about the identity of a child and how they fit in to their family constellation, and the identity of the child may be more relevant in adoption, child protection and surrogacy proceedings than those under the Family Law Act. Nevertheless, it is worth remembering Article 8. A useful discussion of Article 8 is contained in the English case of Re X (a child) (surrogacy: time limit) [2014] EWHC 3135 (Fam), which was a surrogacy case. The Court was being asked to make a parentage order under English surrogacy law, under the equivalent of section 22 of the Surrogacy Act 2010 (Qld). Mumby P said at [54]:
“Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about X’s identity and his relationship with the commissioning parent. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has in effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious consequences. It creates what Thorpe LJ in Re J (Adoption: non-patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of a parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible…”
The point I make about identity is that often the child’s identity is relied upon by decision-makers (typically Department of Child Safety officials) to say that t
