The Best Interests of the Child

In the recent case of Bardot & Benjamin [2013] FCCA 1024 the parties had separated a number of years ago and made arrangements for the care and education of their children. However, a problem arose when their daughter was being bullied at the school both parents had agreed the child would attend many years earlier. The mother sought to have the child moved to another school so that she could start with a ‘clean slate’ but the father opposed this, believing that the child was developing resilience and coping mechanisms by working with the school counsellor at her current school. We assume the child was between 11 and 12 years old.

The main issues were whether the child was a victim of bullying and if she was, was it impacting on her physical or psychological welfare. If this was the case, then the issue for the Court became whether or not such bullying warranted having the child change schools.

The child was doing well academically at school and had forged a number of social relationships and had a few close friends. However, she was forced to change classes to get away from a group of girls who bullied her. This addressed the issue in the class room, but the playground was a great source of anxiety for the child, she had described it as a “war zone.”

It was evident that the child had been a victim of bullying in the form of exclusion. It was noted in the Family Report that had been ordered by the Court, that should this bullying continue it was likely that the child would develop a clinical mood disorder such as depression or anxiety. Further, the child was sensitive and she had expressed the view that she wished to change schools, for an extended period of time.

The mother proposed that the child be sent to a specific school. The Court believed that this school had a better mechanism for dealing with bullying. The child’s current school only had a draft bullying policy, which had been the case for quite some time. This indicated to the Court that the child’s current school did not see bullying as a major issue. Contrasted to this, the mother’s proposed school focused on enhancing self esteem, something that would be extremely beneficial to this particular child.

The Court also took the wishes of the child into account when they were making their decision. Even though the child was young, she had expressed the wish that she wanted to change schools for an extended period of time. As such, the Court gave weight to the child’s desire to change schools.

The father noted that he believed travel to the new school would be an issue as it was much further for the child to travel on a daily basis. However, although the distance was further, it was accepted that the child’s emotional wellbeing took priority.

The Court places a heavy focus on what is in the best interests of the child involved. Here, it was found that it was in the child’s best interests to change schools. There was no doubt that she had been a victim of bullying, she had expressed her strong wishes to change schools and there were potentially serious psychological consequences if nothing was done. It was clearly in the best interests of this child to be given the opportunity to change schools.

Feuds between parents can become bitter and spiteful, however the Court will always place the child’s needs and interests before those of the parents. The Court is concerned with what they believe to be in the best interests of the child, rather than what the competing parents think is appropriate.