When speaking to a lawyer in relation to parenting matters, you will often hear the term “best interests of the child”. When making orders in relation to parenting matters, the Court must consider what is in the best interests of the child determined by section 60CC of the Family Law Act 1975.
Currently the section 60CC factors are broken into a two-tiered approach one being primary considerations and two additional considerations.
The primary considerations are:
- the benefit of a child having a meaningful relationship with both parents; and
- the need to protect the child from harm.
When considering these two factors, the Court gives greater weight to the need to protect the child from harm.
The additional considerations include a further 13 considerations and a catch-all provisions of any other fact or circumstance that the Court thinks is relevant.
Where the presumption of equal shared parental responsibility applied, the Court was mandated to consider an equal time arrangement if it was in the child’s best interest, then substantial and significant time.
The new section 60CC factors
As at 6 May 2024 the framework has changed there will be a core list of considerations to best promote the child’s best interests for their welfare and development and consolidate the previous extensive list of factors to a more cohesive list. Under this new framework, the Court is not required to give more weight to one factor over the others.
1. Safety
The Court must consider what arrangements will encourage the removal, reduction and avoidance of the child being exposed to child abuse and family violence.
2. Any views expressed by the child:
The Court will still have the discretion as to how much weight they apply to a child’s view.
If an Independent Childrens Lawyer is appointed in the matter, they must meet with the child to seek their views.
3. Development, psychological, emotional, and cultural needs of the child
This factor that will allow a broad range of evidence to be considered concerning a particular child’s needs. This includes and is not limited to evidence of the child’s lifestyle, culture and traditions of the child or parent, as well as any developmental or psychological concerns.
4. Capacity of Each Parent to provide for the child’s developmental, psychological and emotional needs, having regard to the carers ability and willingness to seek support to assist them with caring.
This consideration acknowledges the complexities surrounding parenting responsibilities and reflects a more holistic approach. It involves examining not only the historical care provided to the child but also the nature of the relationship between the parent and the child.
5. The benefit to the child of being able to have a relationship with both parents, and other significant people where it is safe to do so.
This provision emphasises the paramount importance of ensuring a child’s safety while acknowledging the value of maintaining relationships within the family, particularly with both parents and other significant individuals like grandparents.
6. Anything else that is relevant to the child.
This catch-all provision within family law proceedings allows flexibility and adaptability in addressing the diverse and unique circumstances that may arise in each family’s situation.
If the child is an Aboriginal or Torres Strait Islander child.
When a child is identified as Aboriginal or Torres Strait Islander, the court is mandated to take into account the child’s inherent right to engage with and uphold their cultural heritage. This involves acknowledging and facilitating the child’s connection to their family, community, culture, land, and language.
Equal time no longer a mandatory consideration
There has been a removal of the mandatory consideration of equal time if equal shared parental responsibility orders are made. The Court will now make time orders purely in accordance with what is in the child’s best interest using the new framework to make that determination. The changes will allow the Court to be open to make time arrangements that are in the child’s best interest and depending on the circumstances equal time and substantial and significant still remain options.
If you need assistance in relation to your parenting matter, please do not hesitate to contact our office to make an appointment.
