The question of how the court determines what is in a child’s best interests is central to all family law matters involving parenting issues. The reason for this is that Section 60CA of the Family Law Act 1975 (“the Act”) states that in deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.
How a court determines what is in a child’s best interests is set out in section 60CC of the Act. Subsections (2) and (3) of s.60CC list a number of factors that the court must consider in determining what is in a child’s best interests. Where an order is sought to be made by consent, the court may have regard to the factors in subsections (2) and (3) but is not required to do so.
The factors listed in section 60 are broken into primary considerations (s.60CC(2)) and additional considerations (s.60CC(3)).
The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act makes it clear that the court must give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with both parents (s.60CC(2A)).
The additional considerations are as follows:
Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
(iii) to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
There is some duplication in the factors. For example, a parent’s drug use may be relevant to s.60CC(3)(f) but may also be relevant to s.60CC(3)(g). In addition, a parent’s drug use may impact on the child’s views (s.60CC(3)(a)) and the child’s relationship with that parent (s.60CC(3)(b)).
Whilst the factors in s.60CC(2) and s.60CC(3)(a) – (l) are an attempt to cover all issues that may be relevant , subsection s.60CC(3)(m) allows the court to consider any other matter that the court think might be relevant.
Of course, not all of the factors in s.60CC(2) and (3) will be relevant in each case and the evidence that is filed and produced to the court should simply address those matters that are suggested to be relevant.
Generally in family law matters, a party’s evidence is given by affidavit. An affidavit is a party’s evidence to support their contention that the orders they seek are in the child’s best interests. Other means of getting evidence before the court which address the relevant s.60CC factors include:
- Issuing a subpoena for the production of documents. For example, where family violence and/or drug use is said to be a relevant factor in the matter, a subpoena might be issued to the police for the criminal record of the party who is alleged to have been violent (s.60CC(3)(j)) or is alleged to have abused drugs (ss.60CC(3)(f) and (i));
- Obtaining a family report which can then provide evidence of the views of the child (s.60CC(3)(a))
When determining a parenting order, the court will weigh the available evidence against the relevant considerations to formulate an order that is in the child’s best interests.