Interpreting the newly defined child's best interests in family dynamics

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Recent updates to family law legislation aim to reduce confusion about how to determine a child's "best interests".
Australia Family and Matrimonial
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Interpreting the Newly Clarified "Child's Best Interests" principles in Family Disputes

Recent updates to family law legislation aim to reduce confusion about how to determine a child's "best interests" when it comes into operation on 6 May 2024.

Previously Section 60CC of the Family Law Act (the Act) contained two categories of factors to be considered by the Federal Circuit and Family Court of Australia (the Court) "primary" and "additional" considerations.

The new Section 60CC contains six "general considerations" and two "additional considerations" regarding Aboriginal and Torres Strait Islander children.

What are the 6 key points?

  1. Safety and Harm Avoidance: The Court will prioritise arrangements that promote the safety and wellbeing of the child and their carers, including protection from family violence, abuse, neglect, or other harm.
  2. Child's Views: The Court considers any views expressed by a child including weight to give to such views. The Court has discretion to appoint an Independent Children's Lawyer (ICL) to ensure a child's best interests are met.
  3. Developmental, Psychological, Emotional, and Cultural Needs: The amendment provides for an assessment of a child's emotional and intellectual needs including the child's maturity, sex, lifestyle, culture and tradition and any other characteristics the Court thinks are relevant.
  4. Capacity of Carers: A detailed examination of the ability and willingness of each proposed carer to meet the child's developmental, psychological, and emotional needs, including their capacity to seek support if necessary, is now enabled. This is particularly pertinent for parents who, for example, are affected by disabilities or family violence.
  5. Benefit of Relationships: The court considers the benefit to the child of having a relationship with both parents and other significant individuals, whilst ensuring it is safe to do so. This change extends to maintaining important relationships beyond the nuclear family, emphasising the child's safety and well-being.
  6. Any Other Relevant Matter: This catch-all provision allows the court to consider any other fact or circumstance deemed relevant to the child's best interests and provides flexibility to the Court.

Additional Considerations for Aboriginal and Torres Strait Islander Children

Cultural Connection: The Court must consider the child's right to enjoy their culture, including opportunities to connect and maintain connections with their family, community, culture, country, and language.

Impact of Proposed Parenting Orders: The likely impact of any proposed parenting order on the child's right to enjoy their culture, ensuring that the child's cultural identity and connections are preserved and respected, must be evaluated.

There have been further amendments to the Act including:
  • Encouraging ICL's to meet directly with children over the age of 5;
  • Providing greater powers to protect parties and children from harmful effects of protracted and adversarial litigation;
  • a definition of 'member of the family' in the Act that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
  • simplified compliance and enforcement provisions for child-related orders;
  • an introduction of powers to enable government to regulate family report writers;
  • ensuring that children's voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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