As someone who attends the Family Court and Federal Circuit Court on a regular basis, I often hear parents say to the Court “I have a right to see my children.” You may think this might be commonsense, that parents have the right to see their children, but in fact, the truth is that they don’t.
“That is crazy!” you might say. But believe it or not, I think this can be a good thing and there is logic behind this way of thinking. Under the Family Law Act, the people who have rights are not the parents, but in fact the children.
In a parenting dispute, rather than the Court focusing on what is “fair” or what each of the parents are “entitled to”, the Court focuses on what is in the child’s best interests. This is why the terminology in the law moved away from the words “custody” and “access”. The reasoning behind this is that children should not be thought of as something someone can possess (like property) but as little people whose best interests should be the paramount consideration of the Court.
But don’t worry; all is not lost for parents. Although the Court does not acknowledge parental rights, it does acknowledge the child’s rights. In determining what is in the child’s best interests, one of the primary considerations is the benefit to the child of having a meaningful relationship with both of their parents. This is balanced against the other primary consideration of the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In each case, the Court must decide what is best for that particular child. Although parents do not have “rights” as such, in the majority of cases, provided it is safe, the Court finds that it is in the child’s best interests to spend time with both of their parents.
By Kasey Fox.