{"id":1310,"date":"2024-06-24T10:44:49","date_gmt":"2024-06-24T00:44:49","guid":{"rendered":"https:\/\/www.abkj.com.au\/articles\/?p=1310"},"modified":"2026-04-13T04:50:51","modified_gmt":"2026-04-12T18:50:51","slug":"changes-to-family-law-best-interests-of-the-child","status":"publish","type":"post","link":"https:\/\/www.abkj.com.au\/articles\/changes-to-family-law-best-interests-of-the-child\/","title":{"rendered":"Changes to Family Law &#8211; Best Interests of the Child"},"content":{"rendered":"<p>On 6 May 2024, certain sections of the <a href=\"https:\/\/www8.austlii.edu.au\/cgi-bin\/viewdb\/au\/legis\/cth\/consol_act\/fla1975114\/\" target=\"_blank\" rel=\"noopener\"><em>Family Law Act 1975<\/em> <\/a>(\u201cthe Family Law Act\u201d) that govern parenting matters changed.<\/p>\n<p>These changes impact all parenting cases that are currently before the Federal Circuit and Family Court of Australia (\u201cCourt\u201d) regardless of when the parenting case was started.<\/p>\n<h2>Key Takeaways<\/h2>\n<ul class=\"ul1\">\n<li class=\"li1\">From 6 May 2024, changes to the Family Law Act governing parenting matters came into effect and apply to parenting cases currently before the Court, regardless of when they started.<\/li>\n<li class=\"li1\">The former objects and principles in section 60B were repealed and replaced with simplified objects focused on ensuring children\u2019s best interests are met, including their safety, and giving effect to the Convention on the Rights of the Child.<\/li>\n<li class=\"li1\">The old framework of primary and additional considerations was repealed and replaced with seven general considerations the Court must assess when determining a child\u2019s best interests.<\/li>\n<li class=\"li1\">The new considerations are not intended to be hierarchical; each factor is to be assessed according to the child\u2019s individual circumstances.<\/li>\n<li class=\"li1\">Safety remains central, with mandatory consideration of any history of family violence, abuse or neglect, and any family violence orders affecting the child or a family member.<\/li>\n<li class=\"li1\">The revised framework also includes the child\u2019s views, the child\u2019s developmental, psychological, emotional and cultural needs, the capacity of carers, the benefit of relationships where safe, a broad catch-all provision, and specific Aboriginal or Torres Strait Islander cultural considerations.<\/li>\n<\/ul>\n<h2>The Best Interests of a Child<\/h2>\n<p>In this article, we will consider the repeal of old provisions in the Family Law Act that previously governed how the Court would determine what was in a child\u2019s best interests, and the creation of new factors that the Court must now consider.<\/p>\n<h2>How does the Court determine what is in a child\u2019s best interests?<\/h2>\n<p>On 6 May 2024, the former objects and principles contained in section 60B of the Family Law Act were repealed and replaced with the following, simplified objects:<\/p>\n<ul>\n<li>to ensure that the best interests of children are met, including by ensuring their safety; and<\/li>\n<li>to give effect to the Convention on the Rights of the Child done at New York on 20\u00a0November 1989.<\/li>\n<\/ul>\n<p>Prior to the reforms, sections 60CC(1) and 60CC(2) of the Family Law Act provided the Court must consider the following primary considerations when determining what is in a child\u2019s best interests:<\/p>\n<ul>\n<li>the benefit to the child of having a meaningful relationship with both of the child\u2019s parents; and<\/li>\n<li>the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.<\/li>\n<\/ul>\n<p>In applying these two considerations, the Court was to give greater weight to the second consideration.<\/p>\n<p>Section 60CC(3) of the Family Law Act went on to list fourteen secondary considerations that the Court must consider in determining a child\u2019s best interests.<\/p>\n<p>The Family Law Amendment Act repealed these primary and additional considerations.<\/p>\n<h2>New Best Interests Considerations<\/h2>\n<p>The Family Law Act now sets out <strong>seven<\/strong> general considerations that the Court must consider when determining what is in a child\u2019s best interests. \u00a0The amended \u201cbest interests\u201d considerations are not intended to be hierarchical, rather, each factor requires assessment and application as may be relevant to each child and their individual circumstances.<\/p>\n<p>The new \u201cbest interests\u201d provisions in the Family Law Act are as follows:<\/p>\n<h2>60CC\u00a0\u00a0How a court determines what is in a child\u2019s best interests<\/h2>\n<h3>Determining child\u2019s best interests<\/h3>\n<ul>\n<li>Subject to subsection\u00a0(4), in determining what is in the child\u2019s best interests, the court must:<\/li>\n<li>consider the matters set out in subsection\u00a0(2); and<\/li>\n<li>if the child is an Aboriginal or Torres Strait Islander child \u2013 also consider the matters set out in subsection\u00a0(3).<\/li>\n<\/ul>\n<h3>General considerations<\/h3>\n<ul>\n<li>For the purposes of paragraph (1)(a), the court must consider the following matters:<\/li>\n<li>what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:<\/li>\n<li>the child; and<\/li>\n<li>each person who has care of the child (whether or not a person has parental responsibility for the child);<\/li>\n<li>any views expressed by the child;<\/li>\n<li>the developmental, psychological, emotional and cultural needs of the child;<\/li>\n<li>the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child\u2019s developmental, psychological, emotional and cultural needs;<\/li>\n<li>the benefit to the child of being able to have a relationship with the child\u2019s parents, and other people who are significant to the child, where it is safe to do so;<\/li>\n<li>anything else that is relevant to the particular circumstances of the child.<\/li>\n<\/ul>\n<p>(2A)\u00a0\u00a0 In considering the matters set out in paragraph\u00a0(2)(a), the court must include consideration of:<\/p>\n<ul>\n<li>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<\/li>\n<li>any family violence order that applies or has applied to the child or a member of the child\u2019s family.<\/li>\n<\/ul>\n<h3>Additional considerations \u2013 right to enjoy Aboriginal or Torres Strait Islander culture<\/h3>\n<ul>\n<li>For the purposes of paragraph (1)(b) the court must consider the following matters:<\/li>\n<li>the child\u2019s right to enjoy the child\u2019s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:<\/li>\n<li>to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and<\/li>\n<li>to explore the full extent of that culture, consistent with the child\u2019s age and developmental level and the child\u2019s views; and<\/li>\n<li>to develop a positive appreciation of that culture; and<\/li>\n<li>the likely impact any proposed parenting order under this Part will have on that right.<\/li>\n<\/ul>\n<p>In summary, the best interests considerations are now:<\/p>\n<h4>1. Safety<\/h4>\n<p>Particularly, the promotion of arrangements that protect the child, and the person who has the care of the child, from family violence, abuse, neglect or other harm, with a mandatory consideration of any <strong>history<\/strong> of family violence.<\/p>\n<h4>2. The child\u2019s view<\/h4>\n<p>The language of this section provides the Court with a broad discretion to consider the wishes of the child.<\/p>\n<h4>3. The child\u2019s needs<\/h4>\n<p>Previously, the Court was required to also consider the needs of the child\u2019s parents. Any reference to parents has been removed from the current provision, which focuses solely on the developmental, psychological, emotional and cultural needs of child.<\/p>\n<h4>4. Capacity<\/h4>\n<p>This provision has moved away from specifically identifying a child\u2019s parents and any other person, to the more neutral position of considering the capacity of each person who is intended to have parental responsibility.<\/p>\n<h4>5. Benefit<\/h4>\n<p>Under the previous legislation, the Court was required to consider the benefit to the child of having a \u201cmeaningful\u201d relationship with both of the child\u2019s parents.<\/p>\n<p>The concept of what constituted a \u201cmeaningful\u201d relationship was the subject of much juris prudence, and perpetuated many disputes, perhaps due to a misguided belief that the Family Law Act bestowed a parental right to have a \u201cmeaningful relationship\u201d with the child.<\/p>\n<p>The new amendments delete the reference to a \u201cmeaningful\u201d relationship. Indeed, the term \u201cmeaningful\u201d no longer features anywhere in the Family Law Act. This is a very important reform. The emphasis is now on the safety of the child.<\/p>\n<h4>6. Catch all<\/h4>\n<p>This provision allows the Court to consider anything else that is relevant to the particular circumstances of the child. This provision bestows a broad discretion upon the Court to consider any number of additional factors appropriate to the determination of a child\u2019s best interests.<\/p>\n<h4>7. Aboriginal or Torres Strait Islander considerations<\/h4>\n<p>Although this section has been modified, the new terms are largely similar to the previous ATSI provisions, which require the Court to consider how parenting arrangements will help the child to experience their Aboriginal and Torres Strait Islander culture.<\/p>\n<h2>Conclusion<\/h2>\n<p>These changes will affect you if:<\/p>\n<ul>\n<li>The Court is considering your parenting arrangements; or<\/li>\n<li>You are trying to determine the right parenting arrangement for your child.<\/li>\n<\/ul>\n<p>If you need further advice in relation to <a href=\"https:\/\/www.abkj.com.au\/formal-agreements.html\">parenting arrangements<\/a> for your child, whether you are considering personal negotiations with the other parent, <a href=\"https:\/\/www.abkj.com.au\/family-law-mediation.html\">mediation<\/a>, or Court proceedings, we are happy to assist.<\/p>\n<p>We invite you to <a href=\"https:\/\/www.abkj.com.au\/contact-us.html\">contact our Family Law team<\/a> today on (07) 5532 3199 for practical advice and information on this evolving area law and how it relates to you.<\/p>\n<h2>Frequently Asked Questions<\/h2>\n<h3 class=\"p1\"><b>1. When did the best interests changes take effect?<\/b><\/h3>\n<p class=\"p1\">The changes took effect on 6 May 2024 and apply to parenting cases currently before the Court, regardless of when they began.<\/p>\n<h3 class=\"p1\"><b>2. What replaced the old best interests framework?<\/b><\/h3>\n<p class=\"p1\">The former primary and additional considerations were removed and replaced with seven general considerations for determining what is in a child\u2019s best interests.<\/p>\n<h3 class=\"p1\"><b>3. Are the new best interests factors ranked in order of importance?<\/b><\/h3>\n<p class=\"p1\">No. The factors are not intended to be hierarchical and are to be assessed according to the child\u2019s individual circumstances.<\/p>\n<h3 class=\"p1\"><b>4. Does the Court still consider safety?<\/b><\/h3>\n<p class=\"p1\">Yes. Safety remains central, including protection from family violence, abuse, neglect and other harm, together with any history of family violence and any relevant family violence orders.<\/p>\n<h3 class=\"p1\"><b>5. Does the Court consider the child\u2019s views?<\/b><\/h3>\n<p class=\"p1\">Yes. The Court may consider any views expressed by the child and has broad discretion in how those views are taken into account.<\/p>\n<h3 class=\"p1\"><b>6. Are Aboriginal or Torres Strait Islander cultural matters specifically considered?<\/b><\/h3>\n<p class=\"p1\">Yes. Parenting arrangements must take into account the child\u2019s right to enjoy their Aboriginal or Torres Strait Islander culture, including connection with family, community, country and language.<\/p>\n<!-- AddThis Advanced Settings generic via filter on the_content --><!-- AddThis Share Buttons generic via filter on the_content -->","protected":false},"excerpt":{"rendered":"<p>On 6 May 2024, certain sections of the Family Law Act 1975 (\u201cthe Family Law Act\u201d) that govern parenting matters changed. These changes impact all parenting cases that are currently before the Federal Circuit and Family Court of Australia (\u201cCourt\u201d) regardless of when the parenting case was started. Key Takeaways From 6 May 2024, changes to the Family Law Act governing parenting matters came into effect and apply to parenting cases currently before the Court, regardless of when they started. The former objects and principles in section 60B were repealed and replaced with simplified objects focused on ensuring children\u2019s best&#8230; <a class=\"more-link\" href=\"https:\/\/www.abkj.com.au\/articles\/changes-to-family-law-best-interests-of-the-child\/\">Continue Reading<\/a><!-- AddThis Advanced Settings generic via filter on wp_trim_excerpt --><!-- AddThis Share Buttons generic via filter on wp_trim_excerpt --><\/p>\n","protected":false},"author":1,"featured_media":1313,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":["post-1310","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-family-law"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.4 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Changes to Family Law - Best Interests of the Child | ABKJ Lawyers<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.abkj.com.au\/articles\/changes-to-family-law-best-interests-of-the-child\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Changes to Family Law - Best Interests of the Child | ABKJ Lawyers\" \/>\n<meta property=\"og:description\" content=\"On 6 May 2024, certain sections of the Family Law Act 1975 (\u201cthe Family Law Act\u201d) that govern parenting matters changed. These changes impact all parenting cases that are currently before the Federal Circuit and Family Court of Australia (\u201cCourt\u201d) regardless of when the parenting case was started. Key Takeaways From 6 May 2024, changes to the Family Law Act governing parenting matters came into effect and apply to parenting cases currently before the Court, regardless of when they started. The former objects and principles in section 60B were repealed and replaced with simplified objects focused on ensuring children\u2019s best... 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These changes impact all parenting cases that are currently before the Federal Circuit and Family Court of Australia (\u201cCourt\u201d) regardless of when the parenting case was started. Key Takeaways From 6 May 2024, changes to the Family Law Act governing parenting matters came into effect and apply to parenting cases currently before the Court, regardless of when they started. The former objects and principles in section 60B were repealed and replaced with simplified objects focused on ensuring children\u2019s best... 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