section 60CC

Question 1

In section 60CC(1) What does a court determine is in a child best interests?

Answer 1

The court must consider the matters set out in sections 2 and 3 of the Family Law Act. These are known as the ‘primary’ and ‘additional’ considerations

Question 2

In section 60CC(2)(a) and (b) What are the ‘Primary’ consideration of the Court when determining the child’s best interests?

Answer 2

a) that the child has the benefit is a meaningful relationship with each parent and
b) the child is protected from any physical and psychological harm eg: child abuse or family violence

Question 3

In section 60CC(3)(a)what does the court take into account when considering the views of child?

Answer 3

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

Question 4

In sections 60CC(3) (ca) of ‘additional’ considerations, what obligations do the court consider?

Answer 4

(ca) The extent to which each parent fulfilled or failed to fulfil their obligations to maintain the child

Question 5

In sections 60CC(3) (d) ‘ additional’ considerations what ‘effects’ must the court consider?

Answer 5

d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Question 6

In sections 60CC(3) (e)what practical difficulties and expense does the court consider may affect the child when he/she spends time with or communicates with a parent?

Answer 6

e) the practical difficulty and expense of a child spending time with and communicating with a parent and
whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

Question 7

In sections 60CC(3) (f) whose capacitity’ does the court consider?

Answer 7

(f) the capacity of: (i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;

Question 8

In sections 60CC(3) (g) what ‘characteristics’ of the child or either of the child’s parent does the court think are relevant?

Answer 8

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

Question 9

In sections 60CC(3) (h) what does the court consider in relation to an Aboriginal or Torres Strait islander children?

Answer 9

(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

Question 10

In sections 60CC(3) (i) what attitude and responsibilities of each parent is considered by the court?

Answer 10

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Question 11

In sections 60CC(3) (j) what does the court consider in relation to family violence?

Answer 11

(j) any family violence involving the child or a member of the child’s family;

Question 12

In sections 60CC(3) (k) (i) and (ii) what does the court consider where a family violence order applies to a child or to a member of the child’s family?

Answer 12

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account (i) the nature of the order;(ii) the circumstances in which the order was made;

Question 13

In sections 60CC(3) (k) (iii) (iv) and (v) what does the court consider in relation to evidence, findings by a court, and relevant matters?

Answer 13

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;

Question 14

In sections 60CC(3) (l) what does the court think is preferable when making a ‘Parenting Order’?

Answer 14

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Question 15

In sections 60CC(3) (m)what does the court think is relevant when making a ‘Parenting Order’?

Answer 15

m) any other fact or circumstance that the court thinks is relevant.

Question 16

In section 60CC(5) what does the court consider when making Consent Orders?

Answer 16

5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Question 17

In section 60CC(6)(a) what rights do Aboriginal or Torres Strait Islander children have to enjoy?

Answer 17

(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and

Question 18

In section 60CC(6)(b) what rights does an Aboriginal or Torres Strait Islander enjoy?

Answer 18

(b) to have the support, opportunity and (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture.

Question 19

In section 60CC(3)(b) what does the court consider in relation to the type of relationship each child has with either parent or other person including grandparent?

Answer 19

b) the nature of their relationship if any with either parent and other persons eg; grandparents, relatives

Question 20

In section 60CC(3)(c) (i) and (ii) what else does the court consider in relation to the participation by each parent in making decisions?

Answer 20

c) the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about long term issues for the child; (ii) to spend time with the child; and (iii) to communicate with the child;

Question 21

Exton & Fahey [2017] FamCA 13

Answer 21

(10 January 2017)