In the majority of cases it is not the Family Court, but the parents, together with their lawyers and the Alternative Dispute Resolution Practitioners, that work together to determine the best interests of the children in the circumstances.
Introduction
In Family Law, a long-established principle is that the best interests of the child must be the paramount consideration for the Court in determining children’s matters. [1]
The Family Law Act, 1975 (Cth) (“FLA”) has been amended frequently over the years including how the court approaches decisions about children. However, the principal consideration of the best interests of the child has endured.
The May 2024 reforms to the Family Law Act
Section 60CC of the FLA lists the matters the Court must consider when making a decision about the best interests of a child. Amendments to the FLA in May 2024 introduced several changes and simplifying the factors to be taken account in determining the “best interests of the child”.
There are no longer primary and secondary considerations, and the Court has more discretion to consider the circumstances in each case in order to place the best interests of the child first emphasising safety concerns in determining the best interests of the child.
The considerations for the court in section 60CC of the FLA are:
- promoting the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child or any proposed carer;
- any views expressed by the child;
- the developmental, psychological, emotional and cultural needs of the child;
- the capacity of each proposed carer 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 significant others, where it is safe to do so;
- anything else that is relevant to the particular child.[2]
Two recent Court decisions made after the May 2024 Amendment
Two recent decisions of the Court provide examples of how the principle about the best interest of the child may be applied. in different, though admittedly, somewhat extreme circumstances.
Father refused any contact with children
In Garside [2024] FedCFamC1A 250 (23 December 2024) the father was unsuccessful in a parenting application seeking contact with his children. The father is serving a prison sentence for assaulting his elder child. The primary judge accepted psychological and psychiatric evidence about the father’s negative and harming effect on the mother’s and the children’s wellbeing.
The primary Judge decided that it was in the children’s best interest to dismiss the father’s application, and, in fact, he did so summarily having been satisfied he had no reasonable prospect of prosecuting his application.[3] Further, the primary Judge prohibited the father from instituting future parenting proceedings without permission from the Court. The father appealed but his appeal was unsuccessful.
Parental conflict and family violence are not one and the same
The second decision is Pickford & Pickford [2024] FedCFamC1A 249 where the Full Court [4] delivered its judgement on 20 December 2024. The Full Court found that the trial judge erred when it made finding against the father regarding family violence which was not supported by the evidence. The Full Court judgment is very instructive and quotes many authorities previous cases about the importance of domestic violence in parenting matters, sometimes being a decisive factor for the Court. However, the Court concluded that the evidence in the case they were hearing did not support a finding about domestic violence against the father of the children.
As part of the joint decision from Austin and Williams JJ, they stated:
“The evidence of parental conflict in this case was abundant, but it is important to observe how parental conflict and family violence are not one and the same thing. Parents can be in conflict without one perpetrating family violence upon the other. Mere disagreement between parties, even if voluble, is not necessarily family violence.
How do these principles apply outside of Court?
Most parenting matters are not determined by the Court. According to a study from the Australian Institute of Family Studies, from October 2019, only:
“About “3% of separated parents use courts as their main pathway to making parenting arrangements …. These are predominantly families affected by family violence, child safety concerns and other complex issues.” [5]
It is therefore not the Court, but the parents, together with their lawyers and the Alternative Dispute Resolution Practitioners, that work together to determine the best interests of the children in the circumstances. The principles contained in s60CC of the FLA still provide a useful guide in conducting negotiations between parents.
Avoiding going to Court
The FLA requires that parties involved in a parenting dispute must, in the first instance, attempt to resolve their dispute via counselling/mediation. [6]
This requirement was further reinforced with amendments to the FLA and Family Law Rules introduced in 2021 with strict new requirements imposed on parties before commencing court proceedings about a parenting dispute. These are known as “pre-action” requirements. [7]
Generally, parties may only commence court proceedings regarding a parenting dispute after an accredited Family Dispute Resolution Practitioner issues a section 60(I) certificate, to the effect that parties attended or attempted to attend mediation/counselling. [8]
Parenting Plans
An efficient tool for avoiding conflict when coparenting after separation is a Parenting Plan. A Parenting Plan is an informal written agreement between parents on how they will raise and care for their children after separation. Though not legally enforceable, it helps parents agree on arrangements such as alternating care, for example on a fortnightly, monthly, or school term basis, as well as agreed principles on parenting approaches and discipline. These plans often succeed because parents negotiate terms themselves, fostering cooperation and reducing conflict.
Parenting Plans are supported under the Family Law Act (FLA), and as set out in s63B, parents “…are encouraged:
- to agree about matters concerning the child; and
- to take responsibility for their parenting arrangements and for resolving parental conflict; and
- to use the legal system as a last resort rather than a first resort; and
- to minimise the possibility of present and future conflict by using or reaching an agreement; and
- in reaching their agreement, to regard the bests interest of the child as the paramount consideration.”
For more information about parenting plans please see our article – Parenting Plans and guidelines.
If you would like advice on drafting Parenting Plans, Parenting Orders or other advice on family law children’s matters, please contact us:
Email: [email protected] or
Phone: +61 2 61983384
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[1] See section 60CA of the Family Law Act, 1975 (Cth).
[2] See also Division 12Ain Part VII of the FLA entitled “Principles for conducting child-related proceedings” which require the Court to follows some specific principles regarding the conduct of proceedings involving children for the protection of the children.
[3] The primary judge dismissed the father’s application summarily, that is, at an early stage without having heard all the evidence.
[4] A panel of five appellate judges sitting: McClelland DCJ, Alridge, Austin, Carew and Williams JJ.
[5] https://aifs.gov.au/sites/default/files/2022-06/1910_parenting_arrangements_after_separation.pdf The study makes reference to provisions of the FLA which have since been amended.
[6] See section 60(I) (f) of the FLA at – http://www7.austlii.edu.au/cgibin/viewdoc/au/legis/cth/consol_act/fla1975114/s60i.html
[7] See prescribed brochure Before you file – pre-action procedure for parenting cases (prescribed brochure) at https://www.fcfcoa.gov.au/fl/pubs/pre-action-parenting
[8] Exceptions apply in some cases for example:
- In domestic violence matters; and
- Urgent matters.
