Changes to the Family Law Act: How a Court Determines a Child’s Best Interest

June 7, 2024

Written By:
Kirtan Swamy

Significant changes to the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”) came into effect on 6 May 2024. The changes will apply to all new and existing parenting proceedings from 6 May 2024 onwards, except in cases where the final hearing commenced before this date.

The changes pertain to how a court should determine the best interests of the child. The child’s best interests remains a paramount consideration in the Amendment Act. The Amendment Act defines interests in relation to a child, includes matters related to the care, welfare or development of the child.



What are the objects of Part VII – Children?


The objects of Part VII regarding children are twofold. First, it is to ensure that the best interests of children are met, including by ensuring their safety. Secondly, it is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (“the Convention”).


The previous legislation had 4 objects and 5 underlying principles. This has now been streamlined to only two (2) objects, with a key emphasis on safety and a direct reference to the Convention.



How does a court determine what is in a child’s best interests?


In the previous legislation, there was a hierarchical approach that the court took in considering primary and additional considerations. There were two primary and fourteen general factors that the court had to consider. This has been simplified in the Amendment Act.


Under s 60CC of the Amendment Act, a court must take a holistic approach and consider six general considerations and an additional two family violence considerations. Moreover, if the child is an Aboriginal or Torres Strait Islander child, the court must consider a further two considerations.



General considerations


There are six general considerations:


1. Safety of the child


The court must consider what arrangements would promote the safety of the child and each person who has care of the child. This includes ensuring the child is safe from being subjected, or exposed to, family violence, abuse, neglect, or other harm.


Furthermore, this safety consideration extends to each person who has to take care of the child, irrespective of whether a person has parental responsibility for the child.


The safety of the child/ren and their caretaker is a key factor in consideration the best interests by the Court. The Court must take into account any past or current family violence orders that apply to the child or a member of that child’s family.



2. View of the child


The Court will consider any views expressed by the child. The amendment no longer require the Court to balance the child’s wishes against their age or level of maturity.


The Independent Children’s Lawyer (“ICL”) is now mandated to meet with a child and give them an opportunity to express their view.



3. Needs of the child


The Court must consider the developmental, psychological, emotional and cultural needs of the child before making an Order.



4. Capacity


The Court must consider what is the capacity of each person who has or is proposed to have parental responsibility for the child including that individuals’ ability to provide for the child’s developmental, psychological, emotional and cultural needs.



5. Relationships


The Court must consider the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.


The Court has discretion to work out the frequency of when a child can meet with a parent or anyone else that is significant to them.



6. Other relevant factors


The court also has discretion to look at anything else that is relevant to the particular circumstances of the child.



Family Violence


In addition to the above considerations, the court must also consider the following consideration:


1. If there is any history of family violence, abuse or neglect involving the child or a person caring for the child, irrespective of whether that person had parental responsibility for the child.


2. Furthermore, if there is any family violence order that applies or has applied to the child or a member of the child’s family.



These two considerations instruct the court on how to approach and deal with safety, in particular with family violence, abuse or neglect when considering the best interests of a child.


Additional considerations – right to enjoy Aboriginal or Torres Strait Islander culture


There is a standalone best interest factor the court must consider if a child is Aboriginal or Torres Strait Islander.


If a child is of Aboriginal or Torres Strait Islander, the child has a right to enjoy Aboriginal or Torres Strait Islander culture and be presented the opportunity support encouragement to connect to that culture.


The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our family law team if you would like to discuss your matter. Our team can be contacted on (03) 9311 8911.

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