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BURTON [2013] – Primary consideration is limited to parents

Burton & Churchin & Anor [2013] FAMCAFC 180

The case

This was an appeal in the Family Court of Australia concerning a young girl, aged 10. The main appealing party was the child’s step mother, while the respondents were the child’s French aunt (she lived in France with her family) and the child’s natural mother, who did not participate in the proceedings. Then, the main two parties were the child’s Australian step-mother and the child’s French aunt. I emphasise the places of origin, given that whose orders succeeded would ultimately determine where the child was to live. Either Australia with the step-mother, where the child had been living, or France, with the aunt.

The background was such that the child’s father had suddenly died overnight at the family home. The events which followed saw the child living in different arrangements as between the natural mother and step-mother, as well as spending intermittent holiday periods with the French aunt and her family in France.

At trial, the Judge determined that it was in the child’s best interests for the child to relocate to France and live with the aunt. The effect of this being that the child would be distanced from her mother in Australia, as well as her half-sibling who was living with the step-mother.

The step-mother appealed this decision.

Main issues on appeal

The appellant step-mother put forward various grounds of appeal, two of which ultimately succeeded. The successful grounds were posed as follows: –

  1. Whether the Judge correctly applied the primary considerations under section 60CC of the Family Law Act.
  2. If not, whether its misapplication tainted the reasoning process and therefore the decision?
  3. Whether the Judge failed to consider the evidence that the child’s primary attachment was to the step-mother?

(Im)proper application of the primary consideration – the benefit of a child having a meaningful relationship with both parents

At trial, the Judge identified the relevant provisions when preparing reasons for judgement. However, it was in the application of the first primary consideration under section 60CC(2)(a) that tainted the decision. The section states: –

How a court determines what is in a child’s best interests

Determining child‘s best interests

             (1)  Subject to subsection (5), in determining what is in the child‘s best interests, the court must consider the matters set out in subsections (2) and (3).


Primary considerations 

             (2)  The primary considerations are: 

                     (a)  the benefit to the child of having a meaningful relationship with both of the child‘s parents; and 

                     (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In the reasoning, when considering this primary consideration, he said “the primary considerations also extend to the step-mother and aunt because they have a close relationship with the child.” It was improper and an error to have equated the status of the aunt and step-mother with that of a “parent”. No interpretation of the word “parent” could have arrived at this outcome.

While the trial Judge did consider the chid’s relationship with the aunt and step-mother under section 60CC(3)(b) – which requires the Court to consider the child’s relationships with other people – this section deals with “additional considerations”. It was not possible to elevate the child’s relationship with her aunt and step-mother to one warranting a primary consideration.

On this point, the step-mother was able to show an error of law and therefore have the appeal succeed.

Evidence that the child’s primary attachment was to the step-mother

A psychiatrist’s report had been obtained after interviewing all relevant parties. The Report then became a critical part of the evidence and the Judge relied on various parts of the Report in arriving at the final decision. One of the key parts of the Report concerned the child’s primary attachments, in particular to the mother and step-mother. The Report concluded that the child’s primary attachment was likely to the Mother, however during the course of evidence in the trial it was revealed that the child’s main attachment was now likely to the step-mother.

There appeared to be some confusion as to who the primary attachment figure was at the time of trial. The child had been through much instability leading up to trial, and it was especially important for evidence relating to her primary attachment figure to be fully understood.

On this point, the step-mother was able to show appellable error.


The appeal was therefore successful and a new trial ordered.

This case shows the significance of the following: –

  1. That the primary consideration of the child to have a meaningful relationship with both parents applies solely to parents. In cases where litigants are non-parents, the Court cannot elevate their status to that of a parent merely because the child/ren have a close relationship with them.

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