Best interest considerations: how will the court now decide what is in a child’s best interest?
The next in our series of articles looking into the changes to the Family Law Act focuses on the best interests’ considerations. These best interest considerations have been completely overhauled by the new legislation. Under the current system the court is required to address two primary considerations and 14 secondary considerations when determining what orders were in a child’s best interests.
That list has been reduced to six considerations. The new considerations are: -
What arrangements will promote the safety of the child and each person who has care of 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.
If the child is Aboriginal or Torres Strait Islander, the Court must also consider the child’s right to enjoy their culture and the likely impact of the orders on that right.
Family violence considerations
The focus on safety is apparent by the introduction of s60CC(2A), which requires the Court consider: -
any history of family violence involving the child or a person caring for the child; and
any family violence order that applies or has applied to the child or a member of the child’s family.
It is relevant that the court must now consider any history of family violence, not just any current family violence concerns.
In our view that the new legislation extends the scope of what the court is required to consider for matters that have involved family violence. Parties will need to provide information about any historical instances of family violence that have affected them, or a member of the child’s family.
Like the current system, the court will likely use that evidence to consider whether any orders, restraints or restrictions needed to ensure the safety of the child.
Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.