Care and Protection Proceedings in the ACT – Part 2

By Gemma Sutherland

The child’s best interests
In Care and Protection proceedings the Court must always consider the best interests of a child as the paramount consideration[1] when it is making any orders or determination for interim and long term placement and parental responsibility.

Primary consideration of the Court – The child’s best interests
Section 349 of the Children and Young People Act 2008 (“the Act”) set outs the care principles to be considered by the Court in order to make a determination about of what is in the best interest of a child in a particular case..

The Court must consider the following matters when determining what is in the child’s best interests:

  • Need to ensure the child is not at risk of abuse or neglect;
  • Any views, wishes or attitudes expressed by the child;
  • Nature of relationship between the child and the parents;
  • The likely effect of changes to the child’s circumstances
  • Practicalities of the child maintaining contact with each parent and anyone else;
  • Capacity of the child’s parents or anyone else to provide for the emotional and intellectual needs of the child;
  • The importance pf the child to be settled, stable and have permanent living arrangements;
  • For Aboriginal or Torres Strait Islander children it is a high priority to protect and promote their cultural and spiritual identity and development;
  • Need to ensure that any decision regarding placement is about safety, support and a stable environment;
  • Any abuse of neglect of the child or a family member;
  • Any court order applicable to the child or a family member
  • Any other fact or circumstances the decision make considers relevant

The Court has an obligation under the Act to ensure that all family members to care proceedings understand what the decision making process and what decision is going to be made. Parents and family members are given the opportunity to be heard and have their views and wishes expressed to the Court prior to any determination being made. The Director General also has an obligation and function under the Act to provide and assist strengthening and supporting families in relation to the wellbeing and care of children in care proceedings.

Our lawyers can may assist you with communicating with CYPS, the preparation of court documentation and providing you legal representation at court. If you or a family member find yourselves in a situation where a child has been removed from their parent’s care, please do not hesitate to contact us. We are able to give you legal advice in relation to this area of law.

Care and Protection Proceedings in the ACT – Part 1


[1] Section 8 in Part 1.2 of the Children and Young People Act 2008 entitled Objects, Principles and Considerations

Children’s Wishes: How the view and interests of the child can be determined and heard in Family Law matters

By Anya Aidmananya bw 2 cropped

When it comes to parenting matters, I regularly have client’s come to me and say “will the Court care about what my child thinks?” and “do they get a say in what happens?”.

There are a number of vehicles and processes in the family law litigation and dispute resolution landscape that identify your child’s interests and that let your child’s voice be heard.

A child’s expressed wishes will always be considered by the court. The weight the court will give to those expressed wishes may vary from case to case and the age and maturity of the child. On the other hand, a court will not force a child to express a wish in a family law dispute.

The Independent Children’s Lawyer

Section 68L of the Family Law Act 1975 enables the Court to appoint an Independent Children’s Lawyer. This is a lawyer who acts independently from the other parties to a matter and whose role it is to represent your child and their interests.

Child-Inclusive Conference

The Court can order that the parties attend a Child Inclusive Conference (“CIC”). Generally, but not always, the Court will order a CIC when parenting matters involve older children.

A CIC includes a court appointed officer, parents or other relevant care givers, and the child or children who are the subject of the proceedings.

“Wishes” Report

The Court can order that a ‘wishes report’ be prepared.  A wishes report can in general terms be described as a psycho-social assessment of a child, generally by a psychologist or child specialist.

The report will be based on an interview or interviews and present the child’s views and experiences, as well as observations and analysis of the child’s views and behaviour in the context of the parenting matter at hand.

Family Report

Section 11F of the Family Law Act 1975 enables the Court to order that the parties attend upon a Family Consultant. This Consultant will interview each party, sometimes with the child or children in question, and prepare a report with respect to their observations and findings.

The findings or reports produced through any of the above processes are not binding on the Court but can be relied upon by the Court in reaching any determination.

If you wish to discuss your family law matter, you can contact Anya Aidman or any of our other experienced family law team.

e: aaidman@elringtons.com.au | p: +61 2 6206 1300

Family Law Disputes Involving Children Pt III

By Carlos Turini – Accredited Family Law SpecialistCarlos 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.

For more information, contact Carlos Turini

p: (02) 6206 1300 | e: cturini@elringtons.com.au


Family Law Disputes Involving Children Part II

By Carlos Turini – Accredited Family Law SpecialistCarlos Turini - Accredited Family Law Specialist

 In a family law dispute involving children, the court is required to consider a number of factors which are prescribed in Part VII of the Family Law Act (“the Act”) entitled “Children”. Part VII contains over 100 sections. Not all the sections are relevant in every case but there is a long list of matters which the Court must consider in each case. This has become known as the legislative pathway which the Court must follow pursuant to the Act in children’s matters. The paramount consideration for the Court in each case is the best interest of the child. [1]

Best interest of the child

A legal dispute about children is something different than an ordinary dispute in a court between two parties. The personal interests or the personal rights of each litigant are subservient or less important than what is in the interests of the child. [2]

The approach that the court takes is that it makes an enquiry about what is in the best interests of the child:

“In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.”

Section 60B of the Act lists the objects and principles underlying Part VII of the Act. The lists emphasises the rights that children have including:

  • the right to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
  • the right to receive adequate and proper parenting to help them achieve their full potential; and
  • the right to know and be cared for by both their parents
  • The right to spend time on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

In order for the court to come to a conclusion in a particular case to decide what is in the best interest of the children, the court must take into account a list of matters, some categorised as “primary” considerations and others as “additional” pursuant to section 60CC of the Act. [3]

Family Law Disputes Involving Children Pt III

For more information, contact Carlos Turini

p: (02) 6206 1300 | e: cturini@elringtons.com.au


[1] See section 60CA of the ACT

[2] M & M [1988] 166 CLR 69, 76 (The Court).t comprising Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ

[3] See Part III Primary and Additional considerations for the court.

Family Law: What is Shared Custody?

“Shared custody” is a term that is frequently heard in relation to childrens matters, but what does it mean?

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In the past, the term “custody” has been used to describe the care arrangements for a child. Nowadays, the terms “lives with” and “spend time with” are used to describe care arrangements. For example, a child may live with their mother and, at specified times, spend time with their father.

The Family Law Act 1975 refers to children spending ‘equal time‘ or ‘significant or substantial time’, rather than “shared custody”.

Under the Act, the court must apply the presumption that it is in the child’s best interests for parents to have equal shared ‘parental responsibility’, unless there are reasons to rebut it or reasons that it does not apply (eg family violence, child abuse, high level of conflict between parents). The term ‘parental responsibility’ means all the duties, powers, responsibilities and authority by law which parents have in relation to children. Parents sharing this equally means they work together and consult each other regarding decisions about the child’s care.  This is not a presumption that the child spends equal or shared time with each parent.

If equal shared parental responsibility is in the child’s best interest, the court will then consider if the child spending equal time with each parent is in their best interest and reasonably practicable. If the court does not think equal time is suitable in the circumstances, the court must consider whether spending significant and substantial time with each parent is in the child’s best interest.  Substantial and significant time includes time on weekends, holidays, and weekdays that allows the parent to be involved in the child’s daily routine – and on special occasions for both the child and the parent.

If the court does not apply the presumption for equal shared parental responsibility, the court may still make Orders for equal time or substantial and significant time, however the reasons the presumption is not applied will usually also be relevant to with whom the child lives and spends time.

For more information or to make an appointment please contact:

Carlos Turini at: cturini@elringtons.com.au or

Phone  the Family Law Team on (02) 6206 1300