Section 60CC Complete Checklist

The 2024 overhaul of best interests law

The Family Law Amendment Act 2023, commencing 6 May 2024, fundamentally changed how courts assess the best interests of the child. The old system of 16 considerations — 2 "primary" and 14 "additional" — was replaced with 6 non-hierarchical factors. No factor automatically outweighs another; the weight given to each depends on the particular child's circumstances.

The key changes were:

• The old hierarchy (primary/additional) was abolished — all 6 factors sit at the same level.
• The presumption of equal shared parental responsibility (old section 61DA) was repealed. Courts no longer start from a presumption; they assess each case on its facts.
• The linked obligation to consider equal or substantial and significant time was removed.
• Safety (section 60CC(2)(a)) was given explicit emphasis, and section 60CG was strengthened to ensure orders do not expose a child or carer to an unacceptable risk.
• Additional considerations for Aboriginal and Torres Strait Islander children were embedded directly in section 60CC(3).

The six section 60CC factors

Under section 60CC(2), the court must consider each of the following factors when determining what arrangements are in the child's best interests. No factor has a fixed ranking — all are weighed in light of the child's specific circumstances.

Factor 1 — s60CC(2)(a): Safety of the child and carers

The safety of the child and each person who has care of the child, including safety from family violence, abuse, and neglect. In practice, where genuine safety concerns are raised, this factor carries very significant weight.

The court considers:

• Any history of family violence, including violence towards the child or other parent.
• Existing intervention orders or family violence orders.
• Any child abuse or neglect allegations, whether substantiated or not.
• Risk factors in the household — substance abuse, mental health, new partners.

Evidence to prepare: police reports, intervention order documents, child protection records, medical records documenting injuries, photographs, text messages or communications evidencing violence or threats, and witness statements.

Factor 2 — s60CC(2)(b): Views expressed by the child

Any views expressed by the child, taking into account the child's maturity and level of understanding. There is no minimum age — even young children's preferences can be relevant, though older children's views generally carry more weight.

The court considers:

• The child's expressed preferences about living arrangements.
• The child's age and maturity level.
• Whether views were expressed freely or may have been influenced by a parent.
• The strength and consistency of the child's views.

Factor 3 — s60CC(2)(c): Developmental, psychological, emotional and cultural needs

The developmental, psychological, emotional and cultural needs of the child. For Aboriginal and Torres Strait Islander children, section 60CC(3) adds specific requirements (see below).

The court considers:

• The child's age and developmental stage.
• Any special needs — disability, learning difficulties, health conditions.
• The child's emotional wellbeing and stability needs.
• Educational needs and schooling arrangements.
• Cultural background and identity needs, especially for Aboriginal and Torres Strait Islander children.
• Religious and spiritual needs.

For Aboriginal and Torres Strait Islander children, section 60CC(3) requires courts to consider the child's right to enjoy their culture, including kinship connections and connection to community, country and language. The court must have regard to evidence from relevant Aboriginal or Torres Strait Islander organisations.

Factor 4 — s60CC(2)(d): Capacity of each person to provide for the child's needs

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. This is assessed comparatively — the court looks at both parents.

The court considers:

• Your involvement in the child's daily life — meals, homework, bedtime, activities.
• Your ability to provide a stable home environment.
• Your work arrangements and availability for the child.
• Your mental and physical health, to the extent relevant to parenting capacity.
• Support networks — extended family, community connections.

Evidence to prepare: school communications showing your involvement, medical appointment attendance records, evidence of your home setup, character references, employment details showing work flexibility, evidence of engagement with the child's activities and interests.

Factor 5 — s60CC(2)(e): Benefit of a meaningful relationship with both parents

The benefit to the child of being able to have a relationship with both parents, and other people significant to the child, where it is safe to do so. This qualification is explicit in the new law — safety always comes first.

The court considers:

• The nature and quality of the child's relationship with each parent.
• Each parent's willingness to facilitate the child's relationship with the other parent.
• Relationships with grandparents, siblings, and other significant people.
• The "where it is safe to do so" qualification — genuine safety concerns can override the benefit of a relationship.

Factor 6 — s60CC(2)(f): Anything else relevant

Anything else that is relevant to the particular circumstances of the child. This catch-all gives courts flexibility to address the unique facts of each family.

This factor allows courts to consider:

• Practical logistics — distance between homes, transport, school catchment.
• The level of conflict between parents and its impact on the child.
• Conduct by a parent that affects their suitability — criminal history, substance abuse.
• Impact of proposed arrangements on the child's daily routine and stability.
• The child's existing routines, friendships, and community ties.

Additional considerations for Aboriginal and Torres Strait Islander children

Section 60CC(3) sets out specific additional considerations that apply when the child is Aboriginal or Torres Strait Islander. These sit alongside the six general factors in section 60CC(2) and are not subordinate to them.

The court must consider:

• The child's right to enjoy their Aboriginal or Torres Strait Islander culture.
• The significance of kinship connections to the child's identity and wellbeing.
• The child's connection to community, country and language.
• The impact of any proposed arrangement on those connections.

The court must have regard to evidence from relevant Aboriginal or Torres Strait Islander organisations about these matters. This is a mandatory obligation — not a discretionary one.

Section 60CG: the safety overlay

Section 60CG operates alongside section 60CC. When making parenting orders, the court must ensure the orders do not expose a child or carer to an unacceptable risk of family violence, abuse, or neglect. It functions as a safety check on the outcome of the section 60CC analysis.

Section 60CG requires the court to:

• Assess risk: consider whether there is a risk of family violence, abuse, or neglect if a particular order is made.
• Include protective measures: if risk exists, include safeguards in the order — supervised time, no overnight stays, or other conditions.
• Provide for ongoing review: orders may include review provisions to reassess risk over time.

Preparing evidence by factor

Structure your evidence around the six factors. For each factor, ask: what evidence do I have that demonstrates this is in my child's best interests?

Common questions