Understanding the recent changes to the Family Law Act - Section 60CC What is in the Child's Best Interests

The Family Law Amendment Act 2023 was passed by the Australian Parliament on 19 October 2023. The changes include new laws about how the Courts will make parenting orders in the best interests of a child and commenced in May 2024. 

We have prepared a series of articles which will set out the major changes to the Act.

Our first article will help parents understand the changes to Section 60CC of the Act, what is in a child’s best interests.

Few legal concepts are more important in family law than figuring out what's best for the child. Let's examine these changes and their effects on the judicial system.

Section 60CC of the Family Law Act serves as the basis for decisions concerning children in family law matters within Australia. Its primary objective is to prioritize the well-being of the child above all else. The new section 60CC has simplified the considerations for determining the child's best interests by streamlining the factors that courts must consider. Instead of having an extensive list of factors to assess, the amendments have clarified and consolidated the key elements into more manageable categories. This simplification aims to make the decision-making process more efficient and focused on the core aspects that truly impact the child's well-being. Additionally, the Act has emphasized the importance of certain factors, such as the child's views and experiences of family violence, ensuring that these critical aspects receive due attention in court proceedings.

The six factors (set out in subsection 60CC(2) of the Act) the Court will consider when deciding what parenting arrangements will be in the best interests of a child are:  

• the safety of the child and people who care for the child (including any history of family violence and family violence orders);
• 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.

Subsection 60CC(3) of the Act establishes a separate "best interest" consideration, where the Court must take into account the entitlement of Aboriginal or Torres Strait Islander children to partake in their culture and ensuring they have the support, opportunity and encouragement necessary. This functions in addition to the broad guidelines found in subsection 60CC(2).

For parents, understanding these changes is vitally important and legal advice specific to your situation should be sought, as family law matters can be complex and require tailored guidance. If we can be of any assistance, please contact us on (08) 8312 4800.