2 results
Exploring The ‘Best Interests’ Principle
- Edited by Jens Scherpe, Aalborg University, Denmark, Stephen Gilmore, King's College London
-
- Book:
- Family Matters
- Published by:
- Intersentia
- Published online:
- 20 April 2023
- Print publication:
- 22 September 2022, pp 853-868
-
- Chapter
- Export citation
-
Summary
1. INTRODUCTION
What are children’s experiences of home and homemaking after parental separation? How is home experienced when children spend time with a father who has perpetrated domestic and family violence? How might those experiences inform our understanding of the operation of the ‘best interests’ principle – that is, the principle that courts must regard the best interests of the child as the paramount consideration – in that context? This chapter draws on the responses of 68 Australian children and young people participating in the first major study of the meaning of ‘home’ after relationship separation to explore these questions, focusing on four case studies from the project.
In doing so, we acknowledge John Eekelaar’s profound contribution to understanding, critique and support of the ‘best interests’ principle. Eekelaar’s focus is fundamentally child-centric in a family law context where this is much-needed and often lacking. In Australia, this has been particularly evident following legislative amendment in 2006, which, while retaining the best interests principle, established shared time post-separation parenting arrangements as the preferred outcome. In contexts of domestic and family violence, the amendments increased ongoing tension between the benefits of a continuing relationship with both parents and the need to protect children, and have intensified concern that Australian family law system processes for reaching post-separation parenting arrangements often do not adequately attend to children’s right to safety, and their desire to limit their time with an abusive parent (typically their father). This is so even following further amendment, in 2012, to make clear that children’s safety is to be prioritised over ‘the benefit to the child of having a meaningful relationship with both of the child’s parents’.
The project discussed in this chapter was informed by previous research finding that Australian post-separation parenting laws and processes respond to parents’ rather than children’s interests, and do not adequately engage with children’s views on decisions affecting them, with children often suffering as a result.
Child Support in The Twenty-First Century
- Edited by Jens Scherpe, Aalborg University, Denmark, Stephen Gilmore, King's College London
-
- Book:
- Family Matters
- Published by:
- Intersentia
- Published online:
- 20 April 2023
- Print publication:
- 22 September 2022, pp 883-898
-
- Chapter
- Export citation
-
Summary
1. INTRODUCTION
Child support (child maintenance) policy – in Australia at least – is designed to ensure that: (a) children of separated or divorced parents receive adequate financial support (‘adequacy’); (b) both parents contribute to the cost of supporting their children, according to their respective capacities to do so (‘equity’); and (c) government expenditure is restricted to the minimum necessary to attain these objectives (equity between parents and the State, i.e. the public – private compact). But balancing the competing needs of children, separated mothers, separated fathers and the State is a formidable challenge in the twenty-first century, because families and relationships are becoming increasingly complex and fluid.
In this chapter, we seek to continue the conversation started by Eekelaar just over three decades ago, when he first alluded to the concepts of adequacy and equity in the context of child maintenance in England and Wales. We explore these two bedrock concepts through the lens of contemporary Australian and American child support policy: specifically, how well each country’s child support systems appear to respond to changes in children’s and parents’ circumstances. Our central argument is that well-designed administrative schemes for the assessment, collection and transfer of child support, such as the Australian and New Zealand systems, are better at balancing adequacy and equity than discretionary court-based or hybrid approaches. This is because they are much cheaper and easier to access, less onerous, and involve less stress than court-based systems, and can respond more quickly to changes in children’s and parents’ circumstances.
2. EEKELAAR’S INSIGHTS: ADEQUACY vs. EQUITY
In the family law arena, where adults’ needs often usurp those of children, Eekelaar has always given primacy to the latter over the former, due to:
children’s vulnerability … the likely longer-term impact of most decisions on children than on the adults involved, and the likelihood that children bore none, or less, responsibility than relevant adults for the circumstances that have arisen.
For Eekelaar, that a community has an obligation to support its children is axiomatic, though he notes that the extent of that obligation remains far from clear.