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How does the Court make decisions?

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

Section 60B of the Act sets out the main aim and principles of Part VII.

The main aim of the part is to ensure the best interests of children are met by:

  • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
  • protecting children from physical or psychological harm (from being subjected to, or exposed to abuse, neglect or family violence)
  • ensuring that children receive adequate and proper parenting to help them achieve their full potential
  • ensuring that parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children

The principles underlying that main aim are:

  • children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together
  • children have a right to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children
  • parents should agree about the future parenting of their children
  • children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)

Under s 60CA of the Family Law Act 1975 (Cth) the Court’s paramount consideration in making any parenting orders must be the best interests of the child.

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

When determining what's in the best interests of the child the Court must consider a set of primary considerations and a set of additional considerations [s 60CC].

Primary considerations

  • the benefits of the child having a meaningful relationship with both parents; and
  • the need to protect the child from physical or psychological harm (from being subjected to, or exposed to, abuse, neglect or family violence)

In applying these two primary considerations the Court must give greater wight to protecting the child from physical and psychological harm [Family Law Act 1975 s 60CC (2A)].

Additional considerations

  • any views expressed by the child
  • the nature of the child’s relationship with:
    • each parent
    • other persons, including grandparents and other relatives
  • the extent to which each of the parents has taken or failed to take the opportunity to communicate and spend time with the child and participate in making decisions about major long-term issues relating to the child
  • the extent to which each of the parents has fulfilled or failed to fulfil the parent's obligations to maintain the child
  • likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
    • either of their parents
    • any other child
    • other person, including grandparents and other relatives, with whom the child has been living
  • the practical difficulty and expense of a child communicating and spending time with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
  • the ability of each of the child's parents and any other person, including grandparents and other relatives, to provide for the needs of the child, including emotional and intellectual needs
  • the maturity, sex, lifestyle and background (including culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child the Court thinks are relevant
  • the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
  • any family violence order involving the child or the child’s family and any relevant inferences that can be drawn from it
  • whether it would be preferable to make the order least likely to lead to further proceedings in relation to the child
  • any other fact or circumstance the Court thinks is relevant

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
  • Even 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” [paragraph 85]. The Court stated [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 [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 [paragraph 85].

Supervised Contact

Supervised Contact means that the Court wants a 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 a time, and the Court thinks that some 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: Mon Jul 25th 2022
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.