Best Interests of the Child in Australian Family Law: Section 60CC Explained

The Standard That Decides Everything

Every parenting order made by the Federal Circuit and Family Court of Australia (FCFCOA) must serve the "best interests of the child." This is not a vague aspiration — the court must treat those interests as paramount under the Family Law Act 1975. Section 60CC sets out the factors used to determine them; in consent-order proceedings, the court is not required to have regard to all of those factors.

Since 6 May 2024, the Family Law Amendment Act 2023 has replaced the old hierarchical system of "primary" and "additional" considerations with a single, consolidated list of six factors. No factor automatically outranks another. The court weighs each one based on the individual child's circumstances.

The Six Section 60CC Factors

1. Safety and protection from harm. What arrangements best protect the child — and anyone who cares for the child — from family violence, abuse, neglect, or other harm. Under Section 60CC(2A), the court must specifically examine any history of family violence, any abuse or neglect, and any family violence intervention orders that apply or have applied to the child or family members.

Safety is listed first for a reason, and while the factors are technically non-hierarchical, judges consistently treat safety as the threshold consideration. An arrangement that exposes a child to risk will not be approved regardless of how well it scores on the other factors.

2. The child's views. The court must consider any views expressed by the child, while assessing what weight those views should carry based on the child's age, maturity, and level of understanding. There is no fixed age at which a child's views become determinative — a mature twelve-year-old's strongly held preference carries more weight than a vague preference from a nine-year-old who is parroting one parent's position.

Children's views are typically gathered through a Family Report prepared by a court-appointed family consultant, or through an Independent Children's Lawyer (ICL) appointed to represent the child's interests. Children are almost never asked to testify in court.

3. Developmental, psychological, emotional, and cultural needs. This covers the full spectrum of what a child needs to thrive — age-appropriate routines, educational stability, emotional security, and connection to their cultural identity. For younger children, this factor often supports arrangements that minimise disruption to established routines. For teenagers, it may support arrangements that accommodate their social and academic commitments.

4. Parental capacity. Each parent's ability to provide for the child's needs is assessed individually. This includes practical capacity (stable housing, employment, proximity to the child's school) and relational capacity (willingness to support the child's relationship with the other parent, ability to manage conflict, responsiveness to the child's emotional needs).

A parent who actively undermines the child's relationship with the other parent — alienating behaviour, making disparaging comments, or obstructing contact — demonstrates poor parental capacity on this factor, even if they're otherwise a capable caregiver.

5. Significant relationships. The benefit to the child of maintaining relationships with parents, grandparents, siblings, and other people significant to the child's life — provided those relationships are safe. This factor often comes into play when one parent proposes to relocate, potentially disrupting the child's relationship with the other parent and extended family.

6. Any other relevant factor. A catch-all that allows the court to consider anything specific to the child's circumstances that doesn't fit neatly into the other five factors. This might include the child's attachment to their home, school, or community; the practical impact of proposed arrangements on the child's daily life; or the willingness of each parent to facilitate a workable co-parenting relationship.

Aboriginal and Torres Strait Islander Children

Section 60CC(3) establishes a standalone obligation for Aboriginal and Torres Strait Islander children. The court must consider arrangements that support the child's right to enjoy, maintain, and strengthen their connection to their Aboriginal or Torres Strait Islander culture, community, country, language, and family. This is not a subset of the cultural needs factor — it's an independent statutory requirement.

What Changed From the Old System

Before May 2024, Section 60CC had a two-tier structure: two "primary" considerations (the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from harm) and a long list of "additional" considerations. The primary considerations had to be weighed first, and they were linked to the presumption of equal shared parental responsibility.

The reform collapsed this hierarchy into a single flat list. The practical effect is significant: the old system sometimes forced judges to balance "meaningful relationship" against "protection from harm" as competing primary considerations, which created difficulties in family violence cases. Under the new framework, safety doesn't compete with relationship maintenance — it's assessed alongside it, without either factor having automatic priority.

How This Affects Your Parenting Plan

When you draft a parenting plan or negotiate consent orders, the Section 60CC factors are the framework the court will use if the arrangement is ever challenged. A plan that visibly addresses each factor — demonstrating how the proposed schedule serves the child's safety, developmental needs, and significant relationships — is substantially stronger than one that simply divides time equally.

The Victoria Child Custody & Parenting Plan Guide walks through each best-interests factor with practical worksheets designed for parents who are drafting their own arrangements. It helps you build an agreement that reflects what a court would consider, whether you're filing consent orders or preparing for mediation.

See more Victoria guides →