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:
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)]:
Harm and Unacceptable Risk
In considering what parenting orders to make, the Court is required to determine both:
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:
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.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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