The Family Court’s primary concern when making parenting arrangements is the best interests of the child. Determining whether a parent is unfit to care for a child involves a careful assessment of their capacity to meet the child’s needs and whether any harm may come to the child in their care. This is a complex assessment — and the law governing it changed significantly in May 2024.
How does the Court now assess a child’s best interests?
Following the Family Law Amendment Act 2023, which came into force on 6 May 2024, the Court now applies a simplified framework under section 60CC of the Family Law Act 1975. Rather than the previous two-tiered system of primary and additional considerations, there are now six general considerations — each given equal weight, with the circumstances of the individual child at the centre of the assessment.
Those six considerations are:
- The safety of the child and each person who cares for the child, including any history of family violence, abuse, neglect, or other harm
- The child’s views, taking into account their age and maturity
- The developmental, psychological, emotional and cultural needs of the child
- The capacity of each proposed carer to provide for those needs
- The benefit to the child of being able to have a relationship with their parents and other people significant to them, where it is safe to do so
- Anything else relevant to the particular circumstances of the child
For Aboriginal and Torres Strait Islander children, the Court must also consider their right to enjoy their culture and maintain a connection with family and community.
What does safety mean in this context?
Safety sits first on that list for a reason. The Court is focused not just on the physical safety of the child, but on safety from exposure to family violence, abuse, and neglect — and that protection extends to the carers of the child as well. A parent’s history of family violence, whether or not it was directed at the child, is directly relevant to the Court’s assessment.
This doesn’t mean a parent with any past difficulty is automatically considered unfit. What the Court is assessing is whether there is an unacceptable risk of harm to the child in that parent’s care — and that requires evidence, not just allegations.
What if a parent limits the other parent’s involvement?
The Court recognises the benefit to a child of having a relationship with both parents and with others significant to them — but this is now one consideration among six, not a primary one. Where safety is a concern, it will take precedence.
Attempts to unfairly limit the other parent’s involvement, or to undermine their relationship with the child, remain relevant to the Court’s assessment. However, parents who raise genuine safety concerns are not penalised for doing so.
Can a parent’s own struggles affect the outcome?
A parent’s mental health difficulties, substance use, or other personal challenges can be relevant if they affect that parent’s capacity to provide for the child’s developmental, psychological, emotional and cultural needs. The Court will not disqualify a parent based on those issues alone — it will look at whether those issues create an unacceptable risk to the child, and what steps the parent is taking to address them.
How does the Court hear from the child?
The child’s own views are now one of the six considerations. The weight given to those views will depend on the child’s age and level of maturity. An Independent Children’s Lawyer, if appointed, is now required under the amended legislation to meet directly with the child (where the child is over five and willing) and to ensure the child has the opportunity to express their views.
The challenge of demonstrating capacity
Proving — or disproving — a parent’s capacity to care for a child requires evidence. The Court relies on family reports, Independent Children’s Lawyers, the conduct of the parties throughout proceedings, and any relevant reports from child protection agencies or health professionals. Allegations alone are not sufficient. What matters is what the evidence actually demonstrates about the risk to the child.
Questions to consider
- What evidence do I have to demonstrate my ability to consistently meet my child’s needs across all six considerations — not just financially, but developmentally, emotionally and culturally?
- How can I best document any genuine safety concerns I have about the other parent, in a way that is specific and supported by evidence?
- Has the other parent’s conduct — including any history of family violence or failure to support the child’s relationship with me — been properly documented?
- What role might an Independent Children’s Lawyer play in ensuring my child’s views and interests are properly heard?