Jenni BlissettUnder the provisions of the Family Law Act is that “the welfare of the child is paramount.” However, circumstances may exist in upholding the principle, where it may be necessary that when deciding with whom a child or children should live, circumstances may outweigh a parent’s submission that it is in the best interest of the child to live with that parent. A court may order that a child reside with some person other than a parent.

In the recent decision of Withall, Richardson and Powles [2013] which was before the Family Court in Western Australia,  the judge was required to decide whether the  children should reside with a parent or a person who was not a biological member of the children’s family. The mother, the father and another significant person in the children’s lives whom I will refer to as ” the intervernor ” presented their individual cases that “it was in the best interest of the children” that they live with only one of them. However, during the course of the proceedings the natural father did not press his application.

It is not practical to outline the facts of this matter, other than to say the parents were separated, each of the parents had suffered ill health, the parents had overindulged in drugs and alcohol and there was reference to child pornography being found
in one of the parents home. The mother sought an order that the children live with her, but the court declined to make such an order. The Court made an order that children live with “the intervernor.” Included in the judge’s findings “the intervernor ” was a person who was likely to promote the relationship of the children with both their mother and there father.

The Court found “the intervernor had the capacity to promote the emotional and intellectual needs of the children and was a person who had previously been responsible for parenting the children.

It is noteworthy that it was held that the children were 13, 12 and 11. These children wished to live with “the intervernor” The Court found significant weight should be given  to the children’s wishes.

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