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(e)the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f)the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;

(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i)any family violence involving the child or a member of the child's family;

(j)any family violence order that applies to the child or a member of the child's family;

(k)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(l)any other fact or circumstance that the court thinks is relevant.”

Where the court is considering making an order to which all parties consent, the court may consider these factors, but is not bound to do so.617

No-order principle

5.29The Council argued that the no-order principle, as set out in section 1(5) of the Children Act 1989, in relation to private law matters is too inflexible.  This section provides that where a court is considering whether or not to make an order, it shall not make the order unless it considers that doing so would be better for the child than making no order at all.  The English Law Society advised the Council that “the no-order principle can lead to difficulties in some cases, particularly where there is a threat of child abduction or where the parent with whom the child is living wants to obtain local authority housing”.618

5.30This is the only explanation provided in the report by the Council for not adopting the English provision.  Instead, they recommended that it would be appropriate to direct that a court, in considering the best interests of the child, should take into account whether to make no order would, in all the circumstances, be preferable to making an order.619  Section 64(1)(ba) already provided that the court should make an order that is least likely to lead to the institution of further proceedings.

617 Section 68F(3), Family Law Reform Act 1975.

618 Ibid at paragraph 47.

619 Ibid at paragraph 48.

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