Section 103 of the Lukautim Pikinini Act 2015 gives content to the principle that governs the entire Act.
Section 103(1) — the two primary considerations
(a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Paragraph (a) points towards contact with both parents. Paragraph (b) may point away from it.
Note the words “subjected to, or exposed to” in paragraph (b). A child need not be the victim. A child who witnesses family violence is exposed to it, and that engages the primary consideration — consistent with paragraph (f) of the definition of a child in need of protection, which covers a child living in a household where there have been incidents of domestic violence.
Where the two primary considerations pull apart, section 5(1)(a) resolves it: the child’s interests are paramount and prevail over any other person’s.
Section 103(2) — the nine additional considerations
| Para | Consideration |
|---|---|
| (a) | Any views expressed by the child, and factors such as the child’s maturity or level of understanding relevant to the weight given to them |
| (b) | The nature of the child’s relationship with (i) each biological parent and (ii) other persons, including relatives |
| (c) | The extent to which each parent has taken, or failed to take, the opportunity to participate in major long-term decisions, to spend time with the child, and to communicate with the child |
| (d) | The extent to which each parent has fulfilled or failed to fulfil the obligation to maintain the child |
| (e) | The likely effect of changes in the child’s circumstances, including separation from either parent, or from any other child or person, including relatives, with whom he has been living |
| (f) | The practical difficulty and expense of spending time with and communicating with a parent, and whether it will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis |
| (g) | The capacity of each parent, and of any other person including relatives, to provide for the needs of the child, including emotional and intellectual needs |
| (h) | The child’s cultural, racial, linguistic and religious heritage |
| (i) | The principles under section 5(2) of the Act |
The child’s views come first. Paragraph (a) heads the additional considerations, with weight calibrated to maturity and understanding — the same approach as section 5(1)(l) and section 5(6).
Relatives appear three times. Paragraphs (b), (e) and (g) all reach beyond the parents. A child raised largely by a grandmother, or living with cousins, has relationships the Court must weigh — which is why section 101(2) lets a grandparent or other concerned person apply.
Conduct is measured by performance, not blame. Paragraphs (c) and (d) ask what each parent has actually done — participated in decisions, spent time, communicated, maintained the child. This is not the fault inquiry of the Matrimonial Causes Act, where section 73(1) makes the parties’ conduct relevant to maintenance.
Paragraph (i) imports section 5(2). That subsection requires the Office to give the child information in a language he understands, an opportunity to express views freely, assistance in doing so, information about how his views will be recorded, an explanation of the decision and its reasons, and an opportunity to respond.
Section 5(3) — the other twelve circumstances
(a) the importance of a positive relationship with a parent or guardian and a secure place as a member of a family; (b) the child’s relationship with relatives; (c) the importance of continuity in the child’s care and the effect of disrupting it; (d) the bonding between child and parent or guardian; (e) the child’s physical and psychological needs and appropriate care or treatment; (f) the child’s level of development; (g) cultural, racial and linguistic heritage; (h) the child’s views and wishes, if reasonably ascertainable; (i) the effect of delay; (j) the risk of harm through being removed from, kept away from, returned to, or allowed to remain in a parent’s care; (k) the degree of risk that justified the finding that the child is in need of protective services; (l) any other relevant circumstances.
Section 103 applies to a parenting order under Division 4, where section 102(1) makes best interests paramount.
Section 5(3) applies wherever a person is directed under the Act to make an order or determination in a child’s best interests — including administrative decisions by the Director and the Office.
The two lists overlap heavily. Section 5(3) adds three matters section 103 does not name expressly: continuity of care and the effect of disruption (c), the effect of delay (i), and the degree of risk that justified the protection finding (k). The prudent course is to address both.
The same standard appears in the Matrimonial Causes Act, though far less developed: section 74(1)(a) requires the National Court to regard the interests of the children as the paramount consideration, with no statutory list at all. In practice a court applying section 74 will find section 103 a useful guide to what that means.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 94, 101–103
- Matrimonial Causes Act (Chapter 282) — ss 73, 74
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.