The 2024 amendments to Section 60CC of the Family Law Act introduce several new considerations for determining the best interests of the child in family law matters. Here’s a detailed look at each requirement, practical steps for application, and potential pitfalls to watch out for.
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To help you navigate these changes more effectively, we have created a free, downloadable visual guide that summarises the new Section 60CC considerations.
1. Prioritise Child Safety
Legal Requirement: The court must prioritise arrangements that promote the safety of the child and caregivers from family violence, abuse, neglect, or other harm.
Application:
- Document any incidents of family violence: Keep detailed records, including dates, descriptions, and any police or medical reports.
- Provide evidence: Submit affidavits, protection orders, and any other relevant documents to the court.
- Highlight safety measures: If you have taken steps to ensure the child’s safety, such as moving to a safer location or obtaining a protection order, make sure to detail these actions in your submissions.
Pitfalls:
- False Allegations: There is a risk that false allegations could be used strategically, leading to unjust outcomes. Courts need to balance protecting children with ensuring that all claims are substantiated.
- Resource Constraints: Courts may struggle to thoroughly investigate claims of violence due to resource limitations, potentially leading to delayed or insufficient protection measures.
- Evidence Challenges: Gathering and presenting sufficient evidence can be difficult, particularly if incidents were not reported or documented at the time they occurred.
2. Consider the Child’s Views
Legal Requirement: The court must consider any views expressed by the child, giving appropriate weight based on the child’s age and maturity.
Application:
- Facilitate the child’s expression: Arrange for the child to communicate their views through a family consultant, counsellor, or Independent Children’s Lawyer (ICL).
- Present the child’s views: Ensure that the child’s views are accurately represented in court documents and hearings.
- Respect the child’s preferences: If the child has strong preferences, be prepared to explain how these align with their best interests.
Pitfalls:
- Influence and Pressure: Children may be unduly influenced by one parent, making it difficult to determine their genuine views.
- Emotional Burden: Placing children in a position where they have to express a preference can be emotionally burdensome and potentially harmful.
- Representation Accuracy: Ensuring that the child’s views are accurately and comprehensively represented requires skilled professionals, which may not always be available due to resource constraints.
3. Address Developmental, Psychological, Emotional, and Cultural Needs
Legal Requirement: The court must evaluate the developmental, psychological, emotional, and cultural needs of the child.
Application:
- Provide expert reports: Obtain reports from psychologists, child development experts, or cultural advisors to support your case.
- Detail your capacity: Demonstrate your ability to meet these needs through evidence of your involvement in the child’s life, including school activities, healthcare, and cultural events.
- Consider cultural connections: For Aboriginal and Torres Strait Islander children, provide evidence of efforts to maintain and support their cultural heritage.
Pitfalls:
- Access to Experts: Obtaining expert reports can be costly and time-consuming, potentially disadvantaging those with limited financial resources.
- Overgeneralisation: The court’s ability to appreciate the specific developmental and cultural needs of each child may be limited, leading to overgeneralised decisions.
- Cultural Sensitivity: Ensuring that cultural needs are properly understood and respected requires culturally competent professionals, which may not always be available.
4. Evaluate Parental Capacity
Legal Requirement: The court must consider the capacity of each person with parental responsibility to provide for the child’s needs.
Application:
- Showcase your involvement: Provide evidence of your participation in the child’s daily life, including school, extracurricular activities, and medical appointments.
- Highlight stability: Demonstrate your ability to provide a stable and nurturing environment.
- Include third-party references: Use character references from teachers, doctors, or community leaders to support your capacity to care for the child.
Pitfalls:
- Bias and Misrepresentation: Courts must guard against potential bias or misrepresentation of a parent’s capacity.
- Inconsistent Standards: Evaluating parental capacity can be subjective, with inconsistent standards applied across different cases and courts.
- Resource Disparity: Parents with fewer resources may struggle to gather sufficient evidence or afford expert witnesses to support their case.
5. Assess Relationships
Legal Requirement: The court must consider the benefit of the child having a relationship with their parents and significant others, where it is safe to do so.
Application:
- Detail positive interactions: Provide evidence of positive interactions between the child and both parents in your affidavit evidence.
- Address any concerns: If there are safety concerns with one parent, provide detailed evidence and suggest supervised visitation if appropriate.
- Promote balanced relationships: Highlight your efforts to encourage and facilitate the child’s relationship with the other parent, where it is safe and beneficial for the child.
Pitfalls:
- Safety vs. Relationship: Balancing the child’s safety with the benefits of maintaining parental relationships can be complex, particularly in cases involving past violence.
- Parental Alienation/lack of time with one parent: In arrangements where a child has not spent much one with a parent can complicate assessments, making it difficult to determine the true nature of the parent-child relationship.
- Emotional Impact: The court’s focus on relationships must consider the potential emotional impact on the child of maintaining contact with a problematic parent.
6. Present Other Relevant Factors
Legal Requirement: The court must consider any other relevant circumstances specific to the child.
Application:
- Identify unique factors: Highlight any unique circumstances, such as special educational needs, medical conditions, or family dynamics.
- Provide comprehensive evidence: Ensure that all relevant information is included in your submissions, leaving no significant detail unaddressed.
Pitfalls:
- Comprehensive Coverage: Ensuring that all relevant factors are considered can be challenging, particularly in complex cases with many variables.
- Potential for Overload: Presenting too much information can overwhelm the court, leading to critical details being overlooked.
- Subjectivity: What constitutes “relevant” can be subjective, leading to inconsistent application of this consideration.
Conclusion
Applying the new Section 60CC in a family law matter requires a thorough understanding of the legal requirements and a strategic approach to presenting evidence and arguments. By prioritising the child’s safety, considering their views, addressing their needs, evaluating parental capacity, and assessing relationships, you can effectively advocate for the best interests of your child.
For more detailed guidance and professional assistance, contact Urban Family Lawyers. Our experienced team is dedicated to helping you navigate these changes and achieve the best possible outcomes for your family.