Child Custody Disputes – “Primary” and “Additional” Considerations for the Court

By Carlos Turini – Accredited Family Law Specialist

In a family law dispute about children, the court must consider a list of matters prescribed in Part VII of the Family Law Act  (“the Act) in order to make a decision. Section 60CC of the Act lists some “primary” and “additional” considerations.

Primary Considerations

There are two primary considerations [1] under section 60CC.

1. Meaningful relationship with both parents

The first primary consideration listed is that the child have a meaningful relationship with both parties. In disputes about children , the court normally comes to the view that it is appropriate that the child have a meaningful relationship with both parties. As a result, courts normally order that children spend regular, frequent time with the parent with whom they do not reside.

The requirement that a child have a meaningful relationship with both parents means that courts frequently prohibit a parent from relocating with the child far away from the other parent. The Court may conclude that the proposed move will have a detrimental effect to the relationship of the child and that other parent. The need for the child to develop or to continue to have a significant relationship with that other parent would be the overriding consideration for the Court in such cases.

2. Child must be protected from harm

The second primary consideration under section 66C is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

Out of these two primary considerations, in an appropriate case, the need to protect the child from abuse or violence will outweigh the need to ensure that the child have a significant relationship with both parents.[2]

As an example, in a case where a parent is or has been subjected to domestic violence, the court may conclude that the need to protect the child is more important that that the child have a significant relationship with the perpetrator of the violence

Additional Considerations

Section 60CC of the Act also lists several “additional” matters which a court must consider in each case when deciding on a dispute about a child. These additional considerations include:

• The child’s views (and factors which are relevant to the weight to be accorded these wishes, for example maturity and level of understanding);
• The child’s relationship with each parent or other people;
• The effect of change on the child, including separation from parents or other people;
• Practical matters regarding possible difficulties of the child having contact with a parent;
• Child’s personal characteristics (maturity, sex, background, culture etc.);
• A specific provision relating Aboriginal children and Torres Strait Island child;
• The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents; and
• Any family violence involving the child or a member of the child’s family.

The above is not an exhaustive list of all the additional considerations for the court pursuant to section 60CC of the Act. Sometimes, one of the additional considerations will become the most significant matter which may decide a case. As an example:

• depending on the child’s age and maturity, his/her expressed wishes
• if one child is estranged from one of the parents and they have not had any time together at all or for many years;
• if there is or has been violence to which the child was exposed;
• If one parent lives overseas and there are practical considerations about how the child may spend time with that parent.