When a child is an infant, or even 1, 2 or 3 at the time of proceedings, predicting the future best interests of that child is hard, particularly if the court is asked to make orders spanning until a child is 18.
What if, due to the child’s young age, the court is unable to project into the future, for example after the child starts school, as to what is in that child’s best interests?
Read on to find out the Court’s approach in these matters.
Recent Case Study: Sciacchitano & Zhukov
In Sciacchitano & Zhukov, final parenting Orders were made on 8.8.24 providing for the child (3) to live with the Mother and spend time with the Father, initially for 8 hrs each fortnight, gradually increasing to every alternate weekend. An order was made placing the child on the AFP watchlist until January 2027.
The orders did not extend past that date or deal with school holidays because “it is not possible with certainty to project further into the future at this time what will be in the child’s best interests.”
The primary judge recognised that if the parties could not agree to vary the orders then a further application would be necessary.
The Father appealed.
One of the Father’s grounds of appeal was that His Honour failed to afford procedural fairness to the Father regarding his intention to make interim orders.
The Appeal court rejected this argument, as the orders were clearly expressed as final.
The Father argued the orders did not progress beyond January 2027.
The Court made clear that the orders are in place beyond 2027, unless varied by agreement or due to proceedings.
The outcome of the primary Judge’s decision was in line with the Court Child Expert’s recommendation which did not extend beyond the child reaching 4, and it did not include a recommendation in relation to school holiday time.
The Father further argued on appeal that the Court failed to consider s60CC(3)(l), whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In other words, by not dealing with school holidays, the inevitable consequence was further litigation.
The Court rejected this argument holding that the court is not required to make orders to avoid future litigation, but rather ask whether it would be preferable to.
The Father then argued to the Appeal Court that he would need to face the hurdle of demonstrating a relevant change in circumstances to change the orders.
The Mother’s counsel at the appeal argued a significant change in circumstances was no longer required following the enactment of s65DAAA.
The Appeal Judge considered recent decisions on this issue, and expressed concern about them, preferring to look at the section, the Act as a whole and its purpose – to codify Rice & Asplund.
In the end, His Honour decided he did not need to come to a concluded view on the issue.
The Court noted that 4 years for a three-year-old child will go a long way to establish a change in circumstances assuming everything else stays the same, which is unlikely.
He said: the future cannot be predicted, that is a matter for another day.
The appeal was dismissed. The Father was ordered to pay the Wife’s costs in the amount of $15,000.
What have we learned about predicting the future when it comes to the best interests of young children?
- The Court must make orders that are in the best interests of the child;
- There is no absolute certainty that a Judge will have the ability or willingness to crystal ball a child’s best interests into the distant future, when the child is still young at the time of court proceedings;
- The ability and willingness of a court to make orders for a young child of 0 – 3, which extend far into the future, e.g. after the child starts school, will depend on what evidence is before the Court, which supports the making of such an order being in the best interests of the child;
- There must be cogent evidence before the court and preferably from the Child Expert, with respect to what future care arrangements are in the child’s best interests;
- In the absence of cogent evidence, a Judge is likely to make orders that accord with the Child Expert’s recommendations only with an acknowledgement that without an agreement to vary the orders at a later date, e.g. after the child starts school, further litigation may be required in the future.
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Do you have a young child? Predicting the future with respect to your young child’s care arrangements is hard. If you require advice about post separation parenting arrangements, so you can make smart decisions following separation, that save you emotional and financial stress, contact us to book a reduced rate consultation with one of our experienced family law practitioners.
