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How does the Court make decisions?

On 6 May 2024 the Family Law Amendment Act 2023 (Cth) made significant changes to family law. For more information about these changes, please refer to the Attorney-General's Department Family Law Amendment Act 2023: Factsheet for parents and/or the Family Law Amendment Act 2023: Factsheet for family law professionals. The Federal Circuit and Family Court of Australia's website also has further practical information and answers to Frequently Asked Questions.

The Court applies Part VII of the Family Law Act 1975 (Cth), which relates to children.

Section 60B of the Act sets out the objects of Part VII. Part VII is intended to:

When the court makes a parenting order, the Family Law Act 1975 (Cth) requires it to regard the best interests of the child as the most important consideration [s 60CA].

How does the Court work out what is in the best interests of the child?

Pursuant to s 60CC, in deciding what is in the best interests of a child, the court must consider:

  • what arrangements would promote the safety (including safety from family violence, abuse, neglect or other harm) of the child and each person who cares for the child
  • any views expressed by the child
  • the developmental, psychological, emotional and cultural needs of the child
  • the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
  • the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so
  • anything else relevant to the particular circumstances of the child.

In considering these matters, the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order intervention order that applies or has applied to the child or a family member [s 60CC(2A)].

Where orders are being made with respect to an Aboriginal or Torres Strait Islander child, the court must also consider [s 60CC(1)(b), (3)]:

  • the child’s right to enjoy their culture, by having the support, opportunity and encouragement necessary
    • to connect with their family, community, culture, country and language, and
    • to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views, and
    • to develop a positive appreciation of that culture, and
  • the impact a proposed parenting order may have on that right.

Harm and Unacceptable Risk

In considering what parenting orders to make, the Court is required to determine both:

  • Whether any allegations of abuse or family violence are proven on the balance of probabilities [Evidence Act 1995 (Cth) s 140, Briginshaw v Briginshaw (1938) 60 CLR 336, M v M (1988) 166 CLR 69], and
  • Where there is no proven abuse or family violence, whether there is an unacceptable risk of harm or family violence [Family Law Act 1975 (Cth) s 60CG, Isles & Nelissen [2022] FedCFamC1A 97].

In the case of Isles & Nelissen [2022] FedCFamC1A 97, the Court on appeal clarified that the test for ‘unacceptable risk’ is not proof on the balance of probabilities but rather the “assessment of risk is an evidence-based conclusion and is not discretionary… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not” [at paragraph 85]. The Court stated [at paragraph 7]:

“Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible to scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.”

On the question of what evidence is, or should be, admissible on this issue, the Court stated [at paragraph 105]:

“Any evidence which is relevant to and influential in that predictive inquiry is admissible and should be taken into account (presuming it survives any other applicable rules of evidence), regardless of whether it meets the definition of and the threshold requirements for admissibility under the tendency rule.”

Ultimately, the Court must make orders that are in the best interests of the children and an evidence-based finding of unacceptable risk is one of the many considerations in the exercise of this discretionary power [at paragraph 85].

Supervised Contact

Supervised contact means that the Court wants a responsible third person present when a parent spends time with their child. The Court may decide it is appropriate that a parent spend supervised time with their child because:

  • there are allegations of family violence and concerns about the child’s safety in the parent’s care (including a finding of unacceptable risk);
  • the child has not seen the parent for some time, and the Court thinks that a gradual reintroduction will help;
  • there have been claims that the child is afraid of the parent;
  • the separated parents are experiencing high levels of conflict;
  • the supervised parent needs the help of another person to care for the child;
  • the child has asked to have someone else present.

Supervised contact may be ordered by the Court at the end of court proceedings (in a Final Order) or at any point during proceedings (in an Interim Order).

Supervised contact can be done privately through another family member or a friend, through a privately engaged supervisor or through a Family Contact Service. A Family Contact Service is a neutral place where a parent and child can spend time together in a safe environment.

There are a number of Family Contact Service providers in South Australia, depending on where the parties are located. Some Family Contact Service providers include:

If you have been asked to supervise contact between a child and a parent, more information is available in our ‘Should I Supervise Contact?’ Factsheet.

How does the Court make decisions?  :  Last Revised: Fri May 3rd 2024
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.