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The central tenet of Part VII of the Family Law Act 1975 (Cth) and Part 5 of the Family Court Act 1997 (WA) is to ensure that the best interests of children are met. Section 60CA FLA and Section 66A FCA require a court making a parenting order to regard the “best interests of the child” as the paramount consideration. The Family Law Amendment Act 2023 (Cth), which came into effect on 6 May 2024, removed the hierarchy of factors in the FLA (i.e. primary and additional considerations) that the court must consider when determining what is in a child’s best interests.
The Federal Circuit Court and Family Court of Australia (FCFCOA) must now consider all the factors set out in Section 60CC(2) and (2A) FLA including:
(2)
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)
the child; and
(ii)
each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)
any views expressed by the child;
(c)
the developmental, psychological, emotional and cultural needs of the child;
(d)
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;
(e)
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;
(f)
anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)
any family violence order that applies or has applied to the child or a member of the child’s family.
New subsection 60CC(3) FLA provides a standalone ‘best interests’ factor requiring a court to consider the right of Aboriginal and/or Torres Strait Islander children to enjoy their culture, as well as the support they will receive to connect to that culture. This operates in addition to the general considerations at subsection 60CC(2).
Western Australia is yet to remove the hierarchy of factors from the FCA. Section 66C(2) and (3A) FCA stipulates the primary considerations as the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm due to family violence or abuse, with greater weight to be given to the need to protect the child from harm.
Depending on the facts and circumstances of the particular case, the court may order (pursuant to Section 11F FLA or Section 65 FCA) that the parties to child-related proceedings take part in an assessment conducted by a Family Consultant to assist the court in understanding the children’s needs and in making short-term decisions about arrangements for the children. Central to all of these assessments is screening for family violence and risk assessment. The court may order that the Family Consultant prepare a Family Report based on their observations during these appointments. The best interests of the children are the main focus of the report.
The Family Violence Best Practice Principles set out the range of matters the Court may determine the Family Report to address.
When considering what order to make, Section 60CG FLA and Section 66G FCA provide that the court must (where possible to do so consistently with the child’s best interests as the paramount consideration), ensure that the order is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence.
The exercise of determining unacceptable risk requires the court, in the first instance, to identify the risk/s with specificity, and then to consider the steps or orders that can and should be made to minimise the specific risk/s. The High Court of Australia in M v M (1988) 166 CLR 69,has considered the meaning of unacceptable risk in cases of child sexual abuse. This decision has subsequently been applied in cases of family violence and non-sexual abuse. To assess for unacceptable risk is to identify the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The presiding court is not required to make a finding about whether a person has perpetrated violence or abuse; rather, it must determine whether orders for residence or contact create an unacceptable risk of harm for the child. The court must consider any risk to the child based on the facts, and balance this risk against the desirability of the child maintaining contact with both parents. The facts may include evidence of past violence or abuse proven on the balance of probabilities, but there may also be a range of other factors not proven to that standard that support a conclusion of unacceptable risk. It is appropriate for the court to rely on expert opinion evidence to assist in determining the child’s best interests. The High Court also acknowledged that the magnitude of the risk may be less if contact is supervised, however even supervised contact may present a risk of physical, emotional or psychological disturbance to the child. The impact of the 2023 amendments to the best interests factors are yet to be seen on cases involving determinations of unacceptable risk of harm for the child.
Section 67ZBA FLA and Section 162A FCA provide that where a party to child-related proceedings, or any other interested person as defined, alleges that there has been family violence or there is a risk of family violence by one of the parties to the proceedings, that person must file a ‘statutory notice’ with the court. In the Federal Circuit and Family Court of Australia any party seeking parenting orders must file with their application or response, a ‘notice of child abuse, family violence or risk’ (Notice of Risk) (Rule 2.04 of FCFCOA Rules). The Notice of Risk (in the form prescribed by section 67Z FLA) requires answers to specific questions directed at eliciting information about child abuse, family violence and a range of other risks.
Where a Notice of Risk is filed, Section 67ZBB FLA and Section 162B FCA require the court to make the necessary interim orders and to act as expeditiously as possible to enable evidence of the allegations to be obtained, to protect children and any party to the proceedings, and to deal with the issues raised by the allegations. The Family Violence Best Practice Principles identify the role of Lighthouse in ensuring that family safety risks are identified at the earliest point in the proceedings and that the most appropriate pathway can be identified for that matter. When considering appropriate interim orders pending a final hearing, the court must assess the risk of future family violence. A screening tool used by the court (known as DOORS) assists with the confidential identification and management of risks present in family law matters. Where an Independent Children’s Lawyer (ICL) is involved in the proceedings at this early stage, the ICL should, where possible, issue subpoenas to relevant agencies and be in a position to tender relevant material. The court must consider whether the evidence provided in support of any allegations satisfies the relevant standard of proof, which is on the balance of probabilities.
Research acknowledges the complexity of the concept of unacceptable risk. If the court is satisfied that the alleged events (involving a parent perpetrating violence or abuse) did occur, there must necessarily be some risk for the child spending time with that parent, at least unsupervised. The position is complicated where the court does not or is not able to make a determination about the alleged events. For the court in these circumstances to disallow contact between parent and child would certainly protect the child from any risk of violence or abuse from the parent, but it may cause other difficulties for the child in the development of their relationship with that parent and perhaps other people. If, on the other hand, the court allows unsupervised contact, and the parent had in fact perpetrated violence or abuse, the child may be at risk and not adequately protected.
A 2015 evaluation by the Australian Institute of Family Studies identified a heightened emphasis by courts and practitioners on identifying family violence issues and safety concerns. It observed that parents self-select into disclosing family violence based on their view of the behaviour, the consequences of disclosure and its implications for parenting arrangements. It also conveyed the views of professionals in the family law system indicating that the screening and assessment of family violence and safety concerns remain challenging, particularly in assessing how these issues impact on parenting arrangements. Section 67ZBB FLA and Section 162B FCA are critical to the court’s powers in responding to these issues.
The central tenet of Part VII of the Family Law Act 1975 (Cth) and Part 5 of the Family Court Act 1997 (WA) is to ensure that the best interests of children are met. Section 60CA FLA and Section 66A FCA require a court making a parenting order to regard the “best interests of the child” as the paramount consideration. The Family Law Amendment Act 2023 (Cth), which came into effect on 6 May 2024, removed the hierarchy of factors in the FLA (i.e. primary and additional considerations) that the court must consider when determining what is in a child’s best interests.
The Federal Circuit Court and Family Court of Australia (FCFCOA) must now consider all the factors set out in Section 60CC(2) and (2A) FLA including:
(2)
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)
the child; and
(ii)
each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)
any views expressed by the child;
(c)
the developmental, psychological, emotional and cultural needs of the child;
(d)
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;
(e)
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;
(f)
anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)
any family violence order that applies or has applied to the child or a member of the child’s family.
New subsection 60CC(3) FLA provides a standalone ‘best interests’ factor requiring a court to consider the right of Aboriginal and/or Torres Strait Islander children to enjoy their culture, as well as the support they will receive to connect to that culture. This operates in addition to the general considerations at subsection 60CC(2).
Western Australia is yet to remove the hierarchy of factors from the FCA. Section 66C(2) and (3A) FCA stipulates the primary considerations as the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm due to family violence or abuse, with greater weight to be given to the need to protect the child from harm.
Depending on the facts and circumstances of the particular case, the court may order (pursuant to Section 11F FLA or Section 65 FCA) that the parties to child-related proceedings take part in an assessment conducted by a Family Consultant to assist the court in understanding the children’s needs and in making short-term decisions about arrangements for the children. Central to all of these assessments is screening for family violence and risk assessment. The court may order that the Family Consultant prepare a Family Report based on their observations during these appointments. The best interests of the children are the main focus of the report.
The Family Violence Best Practice Principles set out the range of matters the Court may determine the Family Report to address.
When considering what order to make, Section 60CG FLA and Section 66G FCA provide that the court must (where possible to do so consistently with the child’s best interests as the paramount consideration), ensure that the order is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence.
The exercise of determining unacceptable risk requires the court, in the first instance, to identify the risk/s with specificity, and then to consider the steps or orders that can and should be made to minimise the specific risk/s. The High Court of Australia in M v M (1988) 166 CLR 69,has considered the meaning of unacceptable risk in cases of child sexual abuse. This decision has subsequently been applied in cases of family violence and non-sexual abuse. To assess for unacceptable risk is to identify the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The presiding court is not required to make a finding about whether a person has perpetrated violence or abuse; rather, it must determine whether orders for residence or contact create an unacceptable risk of harm for the child. The court must consider any risk to the child based on the facts, and balance this risk against the desirability of the child maintaining contact with both parents. The facts may include evidence of past violence or abuse proven on the balance of probabilities, but there may also be a range of other factors not proven to that standard that support a conclusion of unacceptable risk. It is appropriate for the court to rely on expert opinion evidence to assist in determining the child’s best interests. The High Court also acknowledged that the magnitude of the risk may be less if contact is supervised, however even supervised contact may present a risk of physical, emotional or psychological disturbance to the child. The impact of the 2023 amendments to the best interests factors are yet to be seen on cases involving determinations of unacceptable risk of harm for the child.
Section 67ZBA FLA and Section 162A FCA provide that where a party to child-related proceedings, or any other interested person as defined, alleges that there has been family violence or there is a risk of family violence by one of the parties to the proceedings, that person must file a ‘statutory notice’ with the court. In the Federal Circuit and Family Court of Australia any party seeking parenting orders must file with their application or response, a ‘notice of child abuse, family violence or risk’ (Notice of Risk) (Rule 2.04 of FCFCOA Rules). The Notice of Risk (in the form prescribed by section 67Z FLA) requires answers to specific questions directed at eliciting information about child abuse, family violence and a range of other risks.
Where a Notice of Risk is filed, Section 67ZBB FLA and Section 162B FCA require the court to make the necessary interim orders and to act as expeditiously as possible to enable evidence of the allegations to be obtained, to protect children and any party to the proceedings, and to deal with the issues raised by the allegations. The Family Violence Best Practice Principles identify the role of Lighthouse in ensuring that family safety risks are identified at the earliest point in the proceedings and that the most appropriate pathway can be identified for that matter. When considering appropriate interim orders pending a final hearing, the court must assess the risk of future family violence. A screening tool used by the court (known as DOORS) assists with the confidential identification and management of risks present in family law matters. Where an Independent Children’s Lawyer (ICL) is involved in the proceedings at this early stage, the ICL should, where possible, issue subpoenas to relevant agencies and be in a position to tender relevant material. The court must consider whether the evidence provided in support of any allegations satisfies the relevant standard of proof, which is on the balance of probabilities.
Research acknowledges the complexity of the concept of unacceptable risk. If the court is satisfied that the alleged events (involving a parent perpetrating violence or abuse) did occur, there must necessarily be some risk for the child spending time with that parent, at least unsupervised. The position is complicated where the court does not or is not able to make a determination about the alleged events. For the court in these circumstances to disallow contact between parent and child would certainly protect the child from any risk of violence or abuse from the parent, but it may cause other difficulties for the child in the development of their relationship with that parent and perhaps other people. If, on the other hand, the court allows unsupervised contact, and the parent had in fact perpetrated violence or abuse, the child may be at risk and not adequately protected.
A 2015 evaluation by the Australian Institute of Family Studies identified a heightened emphasis by courts and practitioners on identifying family violence issues and safety concerns. It observed that parents self-select into disclosing family violence based on their view of the behaviour, the consequences of disclosure and its implications for parenting arrangements. It also conveyed the views of professionals in the family law system indicating that the screening and assessment of family violence and safety concerns remain challenging, particularly in assessing how these issues impact on parenting arrangements. Section 67ZBB FLA and Section 162B FCA are critical to the court’s powers in responding to these issues.