When determining parenting matters the Family Law Act 1975 (Cth) (the Act) includes considerations that the Federal Circuit & Family Court of Australia (the Court) must take into account when determining what is in a child's "best interests". Those provisions are included at section 60CC of the Act and have been criticised for being confusing, contributing to unnecessary costs and delays and for not capturing issues that are particularly relevant to a case.
The Family Law Amendment Bill 2023 proposes that section 60CC be repealed and replaced with a substitute section 60CC. The Bill was passed on 19 October 2023. Below is a summary of the changes.
The current section 60CC
Currently, section 60CC includes "best interests factors" that are broken up into "primary considerations" and "additional considerations".
The primary considerations are in short: a) the benefit of a child of having a meaningful relationship with both parents; and b) 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 provision of "any other fact or circumstance that the Court thinks is relevant".
The new proposed section 60CC
The new section 60CC is intended to remove overlap in the Act and reduce confusion about the operation of this section. The new section 60CC removes the two-tier hierarchical structure of the "primary" and "additional" considerations and instead includes:
- six "general considerations"; and
- two further considerations if a child is Aboriginal or Torres Strait Islander.
The structure is non-hierarchal and instead focuses on a core list of considerations to best promote the child's welfare and development, i.e. the Court is not required to give more weight to one factor over the others.
The six general considerations are set out in summary below.
What arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The Court will now consider what arrangements would encourage or support a removal, reduction or avoidance of harm to the child. This is intended to apply more broadly, as it applies not just to the child but any person who has care of the child, which may include parents, step-parents, grandparents, siblings, informal kinship carers and other extended family members.
The existence of any family violence involving the child or a member of the child's family, exposure to family violence, and family violence orders will remain relevant.
The inclusion of the term "other harm" is intended to allow the Court a wide discretion to consider the child's particular situation. For example, it will allow consideration of whether certain arrangements are workable in a family situation where high conflict and poor communication are present. This acknowledges findings by the Australian Psychological Society that continuing inter-parental conflict is one of the strongest single predictors of negative child outcomes.
Any views expressed by the child
This simplifies the previous paragraph 60CC(3)(a) and recognises a child's agency and right to be heard. As is the case for all of the best interest factors, the Court would still have discretion in regards to how much weight to place on the child’s views in the circumstances of the case.
The Bill makes other amendments to the Act to strengthen this approach by requiring that, where an Independent Children's Lawyer (ICL) has been appointed by the Court to independently represent a child's interests, that ICL will now be required to meet with the child to seek their views, subject to certain exceptions. Under the current Act ICLs can meet with the child, although it is not a requirement (see our article regarding the new requirements for ICLs).
The developmental, psychological, emotional and cultural needs of the child
This is a new factor that will allow a broad range of evidence to be considered concerning a particular child's needs. It is intended to support a child-focused approach, including a range of the other existing section 60CC factors ─ for example the lifestyle, culture and traditions of the child and/or parent, or any developmental or psychological concerns a child may have.
The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring
This consideration may require an examination of the history of care of the child and the nature of the relationship with each person in addition to the parent's attitude to the child and to the responsibilities of parenthood.
The inclusion of "or willingness to seek support to assist with caring" is particularly relevant to parents with a disability, who may otherwise face assumptions about their capacity to provide care. This also addresses "the perverse situation where a person who has experienced family violence is considered to have lower parenting capacity due to unresolved trauma from family violence".1
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
Where safe and appropriate, most children benefit from spending time with their parents. This was previously provided for as a "primary consideration". The inclusion of the words "safe to do so" is intended to maintain the importance of a child's safety over their relationship with a parent, as was previously provided for in section 60CC(2A).
The section now goes further as it requires the Court to consider the benefit to the child of being able to develop a relationship with both parents, plus any other person of significance to the child, such as grandparents.
Anything else that is relevant to the child
This catch-all provision is a necessary safeguard to account for the myriad circumstances that arise in family law proceedings and to ensure that the Court can make decisions tailored to each family.
If the child is an Aboriginal or Torres Strait Islander child
The two further matters are specific to a child that is Aboriginal or Torres Strait Islander, to recognise important cultural considerations specific to them. If a child is Aboriginal or Torres Strait Islander, the Court must consider the child’s right to enjoy their culture by having the opportunity to connect with and maintain their connection with their family, community, culture, country and language, and the likely impact any proposed parenting order will have on that right.
Summary
In summary, the new section 60CC is intended to continue to provide the Court with wide discretion to consider the facts in each case, with a list of non-exhaustive considerations providing guidance. Each of the relevant circumstances need to be considered and evaluated in each case, with a view to reaching the right outcome for the children involved.
For assistance with your parenting matter, or for guidance on the implications of the abovementioned amendments, please contact a member of our experienced family & relationship law team.
1 Australian Law Reform Commission, Family Law for the Future - An Inquiry into the Family Law System, paragraph 5.64.
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