Changes to Family Law - Best Interests of the Child

On 6 May 2024, certain sections of the Family Law Act 1975 (“the Family Law Act”) that govern parenting matters changed.

These changes impact all parenting cases that are currently before the Federal Circuit and Family Court of Australia (“Court”) regardless of when the parenting case was started.

The Best Interests of a Child

In this article, we will consider the repeal of old provisions in the Family Law Act that previously governed how the Court would determine what was in a child’s best interests, and the creation of new factors that the Court must now consider.

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

On 6 May 2024, the former objects and principles contained in section 60B of the Family Law Act were repealed and replaced with the following, simplified objects:

to ensure that the best interests of children are met, including by ensuring their safety; and
to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Prior to the reforms, sections 60CC(1) and 60CC(2) of the Family Law Act provided the Court must consider the following primary considerations when determining what is in a child’s best interests:

the benefit to the child of having a meaningful relationship with both of the child’s parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In applying these two considerations, the Court was to give greater weight to the second consideration.

Section 60CC(3) of the Family Law Act went on to list fourteen secondary considerations that the Court must consider in determining a child’s best interests.

The Family Law Amendment Act repealed these primary and additional considerations.

New Best Interests Considerations

The Family Law Act now sets out seven general considerations that the Court must consider when determining what is in a child’s best interests. The amended “best interests” considerations are not intended to be hierarchical, rather, each factor requires assessment and application as may be relevant to each child and their individual circumstances.

The new “best interests” provisions in the Family Law Act are as follows:

60CC How a court determines what is in a child’s best interests

Determining child’s best interests

Subject to subsection (4), in determining what is in the child’s best interests, the court must:
consider the matters set out in subsection (2); and
if the child is an Aboriginal or Torres Strait Islander child – also consider the matters set out in subsection (3).

General considerations

For the purposes of paragraph (1)(a), the court must consider the following matters:
what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
the child; and
each person who has care of the child (whether or not a person has parental responsibility for the child);
any views expressed by the child;
the developmental, psychological, emotional and cultural needs of the child;
the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
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;
anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
any family violence order that applies or has applied to the child or a member of the child’s family.

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

For the purposes of paragraph (1)(b) the court must consider the following matters:
the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
to develop a positive appreciation of that culture; and
the likely impact any proposed parenting order under this Part will have on that right.

In summary, the best interests considerations are now:

1. Safety

Particularly, the promotion of arrangements that protect the child, and the person who has the care of the child, from family violence, abuse, neglect or other harm, with a mandatory consideration of any history of family violence.

2. The child’s view

The language of this section provides the Court with a broad discretion to consider the wishes of the child.

3. The child’s needs

Previously, the Court was required to also consider the needs of the child’s parents. Any reference to parents has been removed from the current provision, which focuses solely on the developmental, psychological, emotional and cultural needs of child.

4. Capacity

This provision has moved away from specifically identifying a child’s parents and any other person, to the more neutral position of considering the capacity of each person who is intended to have parental responsibility.

5. Benefit

Under the previous legislation, the Court was required to consider the benefit to the child of having a “meaningful” relationship with both of the child’s parents.

The concept of what constituted a “meaningful” relationship was the subject of much juris prudence, and perpetuated many disputes, perhaps due to a misguided belief that the Family Law Act bestowed a parental right to have a “meaningful relationship” with the child.

The new amendments delete the reference to a “meaningful” relationship. Indeed, the term “meaningful” no longer features anywhere in the Family Law Act. This is a very important reform. The emphasis is now on the safety of the child.

6. Catch all

This provision allows the Court to consider anything else that is relevant to the particular circumstances of the child. This provision bestows a broad discretion upon the Court to consider any number of additional factors appropriate to the determination of a child’s best interests.

7. Aboriginal or Torres Strait Islander considerations

Although this section has been modified, the new terms are largely similar to the previous ATSI provisions, which require the Court to consider how parenting arrangements will help the child to experience their Aboriginal and Torres Strait Islander culture.

Conclusion

These changes will affect you if:

The Court is considering your parenting arrangements; or
You are trying to determine the right parenting arrangement for your child.

If you need further advice in relation to parenting arrangements for your child, whether you are considering personal negotiations with the other parent, mediation, or Court proceedings, we are happy to assist.

We invite you to contact our Family Law team today on (07) 5532 3199 for practical advice and information on this evolving area law and how it relates to you.