Section 60cc is the section of the Family Law Act 1975 that relates to the best interests of the child.
These general considerations must be taken into account by the judge if your matter goes to trial and should also be considered by you in Family Dispute Resolution. If the FDR Practitioner does not feel that you are taking into account the best interests of your child they have a duty to raise questions about the best interests of your child.
The interpretations below ARE NOT legal advice. It is important that you speak to a qualified family lawyer about their interpretation of the specific circumstances of your family in order to get legal advice.
FAMILY LAW ACT 1975 – SECT 60CC How a court determines what is in a child’s best interests
This article is based on the text from the Family Law Act 1975 accessed 5/10/2017 http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60cc.html
How a court determines what is in a child’s best interests
Determining child’s best interests
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
Interpretation: The court clearly recognises the importance to children in having a meaningful relationship with both parents. That does not mean that 50/50 care of any set amount of time is required to be spent with each parent. Meaningful is about the quality of the relationship.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Interpretation: Making sure that your child is appropriately cared for and protected is the most important consideration for the court.
Everyone involved in the family law system should be trying to protect your child from abuse, neglect or family violence. The reality is that with any system as large as the family law system there will be individuals who get it wrong or do the wrong thing. If you have concerns that you feel are not being addressed feel free to get in touch with Interact Support to discuss your concerns.
Often parents are accused of making things up and sometimes they see threats to their child that are not really there leading to some professionals not listening or discounting what you say. If you have genuine concerns keep a record of issues and incidents that have led to your concerns so that you have as much evidence as you can get to back up your concerns.
If you are saying things, or be advised to say things, about your child’s other parent that are not true. Please stop! Your child has a right to have a meaningful relationship with you both, if it is safe for them, and it is not in their best interests to attempt to prevent that. In the long term it may also have negative consequences for you and your family law case and relationship with your child.
If you or your child’s other parent has a mental health, drug or alcohol abuse issue that is uncontrolled that may affect your child’s safety when they are with that parent. There are ways for a relationship to continue but it must take into account the risks for the child.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Interpretation: In other words the most important thing is that your child is protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. If that protection can be reasonably assured then it is considered to be in the child’s best interests to have the benefit of a meaningful relationship with both of the child’s parents.
If the child’s parents are locked in conflict this clause can see a loss of parental responsibility. If you are incapable of reaching agreement about your child’s needs and the matter goes to Family Court there is the risk that at some point the Judge will pick a parent to have sole parental responsibility for the child. That will mean the parent can make decisions about the child such as what school they go to and other day to day and long term decisions. The other parent will usually have limited access to spend time with the child in these circumstances and that access may be supervised.
The court does not decide based on whether you love your child. It’s job is to protect your child from the harm that we know from numerous research studies can result from ongoing exposure to high conflict and family violence. Even if the child is not being physically abused or neglected if you are incapable of getting on in a civil manner for the benefit of your child and you engage in abusive behaviour you run the risk of losing your rights as a parent.
Once the primary considerations are taken into account additional considerations may be looked at. Depending on your family some of these considerations may be very important while others do not apply or are not considered by you to be important.
(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;
Interpretation: In Family Dispute Resolution you can also bring the voice of the child into your considerations by using a Child Inclusive process. In this process the child meets with a practitioner who is trained in helping children to express their views without putting the burden of deciding what the arrangements should be for the child. This section does not mean that children should be making adult decisions.
(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);
Interpretation: the quality and significance of relationships in your child’s life are important. If you have a terrible relationship with your child and the child is resistant to spending time with you
(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;
Interpretation: The court can look at how much effort you have made to be involved in your child’s life. It is important for you and them that you make the effort to communicate and spend time with them even if what you are offered is not what you want. Being spiteful and refusing to participate in your child’s life unless you get what you want can have long term consequences for your child but can also affect your family law position.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfill, the parent’s obligations to maintain the child;
Interpretation: You have a legal and moral obligation to provide for your child whether you live with them or not. Holding back child support in order to coerce your child’s other parent is a form of family violence and may also regarded extremely poorly by the Family Court. Paying for your child’s needs and spending time with them are two separate issues and should not be confused.
(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;
Interpretation: D and E relate to moving house with the child or other actions that will make it significantly harder for them to spend time with their other parent and that side of their family. Decisions like this need to be made carefully and the court can and will prevent you from moving the child or force you to return the child if it believes it is in the child’s best interests.
(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); 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;
Interpretation: If it thinks necessary the court can enquire into pretty much any aspect of your life and how well you can and do care for your child’s needs. That relates not just to their physical needs but also their emotional and intellectual needs. How well the court is capable of doing this is very much subject to debate but the Family Law Act 1975 does recognise the importance of all these factors in the healthy growth and development of a child. Family and cultural traditions are valued and something that can be included in your Parenting Agreement and Consent Orders if you take the less adversarial pathway.
(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;
Interpretation: the Family Law Act 1975 makes particular mention about the importance of helping Aboriginal and Torres Strait Islander children to maintain their links with their culture.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Interpretation: the court can consider your attitude to your child and how well you’ve managed the responsibilities of parenting. Often a parent who is not showing appropriate understanding of their child’s individual and separate needs in terms of development and care will be ordered to attend a Post Separation Parenting Program by the family court.
(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;
Interpretation: Family Violence and exposure to Family Violence must be considered by the Family Court and must be considered by Family Dispute Resolution Practitioners in deciding to offer Family Dispute Resolution. On the lower end family violence is not a crime it is know to be detrimental to the growth and emotional development of children and can have serious long term psychological consequences.
Some forms of family violence are criminal behaviour and may lead to police charges. Failing to respect a Family Violence Intervention Order may also be a criminal offense and result in charges, fines and even imprisonment.
If you have a Family Violence Order application against you it is very important that you get good quality legal advice and ask the lawyer about the possible impact of the application on your family law situation.
(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;
Interpretation: the family court wants you to sort out your issues and not come back to court. The reality is that no court order is going to last your family the rest of your child’s childhood. For this reason you can mediate with a Family Dispute Resolution Practitioner or even negotiate new parenting agreements directly and make them into Parenting Plans and Consent Orders.
Parenting Plans can replace the terms of a Court Order unless the order specifically says that it can’t. Consent Orders replace any previous order and can be used to update your orders if they get out of date and no longer relevant.
Interact Support provides Family Dispute Resolution to help re-negotiate agreements even if your family has experienced high conflict in the past.
(m) any other fact or circumstance that the court thinks is relevant
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.