family law topic 51 family law topic 5: parenting disputes

Family Law Topic 5Family Law Topic 5 11

FAMILY LAWFAMILY LAW

TOPIC 5: TOPIC 5: PARENTING DISPUTESPARENTING DISPUTES

CAUTIONCAUTION

This PPT does NOT reflect the This PPT does NOT reflect the amendments which came into effect on 7 amendments which came into effect on 7 June 2012.June 2012.

These amendments are contained in the These amendments are contained in the student notes for this topicstudent notes for this topic



(1)(1) PARENTAL POWERS AND PARENTAL POWERS AND RESPONSIBILITIESRESPONSIBILITIES

(a)(a) Common LawCommon Law ‘‘guardianship’ guardianship’ andand ‘custody’ ‘custody’ llong ong

termterm vsvs short term short term parental rightsparental rights (egs) (egs)

- - name of childname of child- where child resides- where child resides

(and ‘access’)(and ‘access’) diminishing nature of parental diminishing nature of parental

rights?rights?see see Gillick Gillick (UK) (UK) MarionMarion (Aust) (Aust)


(1)(1) PARENTAL POWERS AND PARENTAL POWERS AND RESPONSIBILITIESRESPONSIBILITIES

(a)(a) Common LawCommon Law In In Gillick v West Norfolk and Weisbech Area Gillick v West Norfolk and Weisbech Area

Health AuthorityHealth Authority (1986) AC 112 (1986) AC 112 Lord Lord Scarman stated:Scarman stated:

... Parental rights yields to the child's rights to ... Parental rights yields to the child's rights to make his own decisions when he [or she] make his own decisions when he [or she] reaches a sufficient understanding and reaches a sufficient understanding and intelligence to be capable of making up his [or intelligence to be capable of making up his [or her] mind on the matter requiring decision her] mind on the matter requiring decision (at p (at p 186).186).


(b)(b) State and Territory State and Territory LawsLaws(i)(i) parens patriae jurisdictionparens patriae jurisdiction

Origins in Chancery (Equity)Origins in Chancery (Equity) G -v- PG -v- P (1977) VR 44 (1977) VR 44::

... in all matters relating to the custody, ... in all matters relating to the custody, guardianship and welfare of all infants, guardianship and welfare of all infants, whether born in or out of wedlock (at p 46).whether born in or out of wedlock (at p 46).

(ii)(ii) wardshipwardship ward of the court (parens patriae)ward of the court (parens patriae) ward of the state: ward of the state: Children Children and Young and Young

Persons Persons (Care and Protection) Act(Care and Protection) Act 19 199898


The United Nations Convention The United Nations Convention on the Rights of the Child on the Rights of the Child (UNCROC)(UNCROC) 1924 Geneva Declaration1924 Geneva Declaration 1959 UN Declaration1959 UN Declaration 1979 International Year of the Child1979 International Year of the Child 1989 Convention1989 Convention 1990 Australia ratifies1990 Australia ratifies


(c)(c) Part VII Family Law ActPart VII Family Law ActUN Convention of Rights of UN Convention of Rights of

the the ChildChild 1989 ( 1989 (UNCROCUNCROC))

(UK) (UK) Children ActChildren Act 1989 1989 Joint Select Committee 1992Joint Select Committee 1992 Government Response 1993Government Response 1993 Family Law Council (etc) commentsFamily Law Council (etc) comments Family Law Reform ActFamily Law Reform Act 1995 1995 (a new Pt VII of (a new Pt VII of

the the FLAFLA) (June 1996)) (June 1996) Family Law Amendment (Shared Parental Family Law Amendment (Shared Parental

Responsibility) Responsibility) 20062006 (July 2006) (July 2006)


(c)(c) Part VII Family Law ActPart VII Family Law Act Object of Part VIIObject of Part VII

see s60B (**new in 2006)see s60B (**new in 2006) Children’s rights: Children’s rights: to ensure that the best to ensure that the best

interests of the children are met by:interests of the children are met by: meaningful relationship with both parents: meaningful relationship with both parents:

s60B(1)(a)**s60B(1)(a)** protecting children from abuse: protecting children from abuse: s60B(1)(b)**s60B(1)(b)** ensuring children receive adequate and ensuring children receive adequate and

proper parenting proper parenting s60B(1)(c)**s60B(1)(c)** ensuring parents fulfil their duties and meet ensuring parents fulfil their duties and meet

their responsibilities: their responsibilities: s60B(1)(d)**s60B(1)(d)**


(c)(c) Part VII Family Law ActPart VII Family Law Act Object of Part VII/children’s rightsObject of Part VII/children’s rights

right to know and be cared for by both right to know and be cared for by both parents: parents: s60B(2)(a)s60B(2)(a)

right to regular contact with parents and right to regular contact with parents and significant others: significant others: s60B(2)(b)s60B(2)(b)

parents jointly share duties and parents jointly share duties and responsibilities: responsibilities: s60B(2)(c)**s60B(2)(c)**

parents should agree about future parents should agree about future parenting: parenting: s60B(2)(d)s60B(2)(d)

right to enjoy their culture: right to enjoy their culture: s60B(2)(e)**s60B(2)(e)**


(c)(c) Part VII Family Law ActPart VII Family Law Act

Parental ResponsibilityParental Responsibility shared by parents shared by parents (equally?)(equally?) see see ss660B(2)(0B(2)(cc), 61C), 61C examples include:examples include:

providing a homeproviding a home having contacthaving contact Protecting and maintaining Protecting and maintaining determining education and religious needsdetermining education and religious needs consenting to medical treatmentconsenting to medical treatment



Part VII Part VII – – DivisionsDivisions

1.1. Objectives (new subdivisions**)Objectives (new subdivisions**)2.2. Concept of Parental ResponsibilityConcept of Parental Responsibility3.3. CounsellingCounselling4.4. Parenting PlansParenting Plans5.5. Parenting OrdersParenting Orders6.6. ‘Nuts and Bolts’ of Parenting Orders‘Nuts and Bolts’ of Parenting Orders7.7. Child MaintenanceChild Maintenance8.8. ‘Other Matters’‘Other Matters’



Part VII Part VII – – Divisions (con’t)Divisions (con’t)

9.9. InjunctionsInjunctions10.10. Best Interests PrinciplesBest Interests Principles11.11. Family ViolenceFamily Violence12.12. JurisdictionJurisdiction13.13. Registering State, Territory or Registering State, Territory or Overseas OrdersOverseas Orders13A. Parenting Compliance Regime 13A. Parenting Compliance Regime (including contempt)(including contempt)


(d)(d) Change of name issueChange of name issue

Parental responsibilityParental responsibility Remedy – injunction Remedy – injunction s 68Bs 68B Consent?Consent? Welfare of child?Welfare of child?


(a)(a) LegitimacyLegitimacy ffilius nulliusilius nullius Marriage ActMarriage Act 1961 1961

see see ssss 89, 91, 9289, 91, 92

(b)(b) Equality of Status LegislationEquality of Status Legislation Status of Children ActStatus of Children Act 1996 1996

(2)(2) PARENTAGE OF PARENTAGE OF CHILDRENCHILDREN


(2)(2) PARENTAGE OF PARENTAGE OF CHILDRENCHILDREN(c)(c) Establishing the Parentage of Establishing the Parentage of

ChildrenChildren mater sempter certa est pater incertus estmater sempter certa est pater incertus est parentage presumptionsparentage presumptions

marriage: marriage: ss 69P69Pdefacto relationship: defacto relationship: ss 69Q69Qbirth certificate: birth certificate: ss 69R69Rcourt findings: court findings: ss 69S69Sacknowledgment: acknowledgment: ss 69T69T

presumptions are rebuttablepresumptions are rebuttablesee see ss 6969UU (civil standard) (civil standard)


(2)(2) PARENTAGE OF CHILDRENPARENTAGE OF CHILDREN(d) (d) Parentage EvidenceParentage Evidence

Note Note ss 69V and 69VAss 69V and 69VA(i)(i) physical appearance?physical appearance?(ii)(ii) blood group evidence?blood group evidence?(iii)(iii)DNA (deoxyribonucleic acid molecule)DNA (deoxyribonucleic acid molecule)(iv)(iv)court enforcement?court enforcement?

ss 69W69W (court request) (court request)ss 69X69X (types of orders) (types of orders) and Regulationsand Regulations

(v)(v) failure to complyfailure to complyss 69Y69Y (adults)/ (adults)/ ss 69Z69Z (children) (children)

Also note Also note ss 69ZA-ZDss 69ZA-ZD


(2)(2) PARENTAGE OF CHILDRENPARENTAGE OF CHILDRENPaternity tests rise (Sun-Herald, 27.3.05)Paternity tests rise (Sun-Herald, 27.3.05)The use of DNA paternity tests has increased by more than 60 The use of DNA paternity tests has increased by more than 60 per cent over the past three years, say Australian testing per cent over the past three years, say Australian testing laboratories.laboratories.

Scientists estimate that 5000 tests are expected this year, up Scientists estimate that 5000 tests are expected this year, up from 3000 in 2002.from 3000 in 2002.

They estimate up to 10 per cent of men who believe they have They estimate up to 10 per cent of men who believe they have fathered a child are not the biological parent, while 20 per cent fathered a child are not the biological parent, while 20 per cent of those who demand a paternity test have that fear confirmed.of those who demand a paternity test have that fear confirmed.

Men from poorer backgrounds comprise the bulk of those tested.Men from poorer backgrounds comprise the bulk of those tested.


(2)(2) PARENTAGE OF CHILDRENPARENTAGE OF CHILDREN(e) Surrogacy(e) Surrogacy

State laws – parentage presumptions State laws – parentage presumptions under under Status of Children Act Status of Children Act 19961996

s 14 s 14 SOCASOCA – irrebuttable presumption – irrebuttable presumption (legal fiction created)(legal fiction created)

s 60H s 60H FLA FLA ((effect?)effect?) Relevance of contract law and promissory Relevance of contract law and promissory

estoppel? estoppel? Best interests test appliesBest interests test applies


(a)(a) Parenting OrdersParenting Orders s 61D/s 64B (new) s 64B(2) s 61D/s 64B (new) s 64B(2) alters shared parental responsibilityalters shared parental responsibility (old) (old) residenceresidence

(new) – (new) – lives withlives with: s 64B(2)(a): s 64B(2)(a) (old) (old) contactcontact

(new) (new) time child spends withtime child spends with: s 64B(2): s 64B(2)(b); (b); communication (with)communication (with): s 64B(2)(e): s 64B(2)(e)

(3)(3) PARENTPARENTING ING ORDERSORDERS


(a)(a) Parenting OrdersParenting Orders (old) (old) specific issuesspecific issues

(new) (new) allocation of parental allocation of parental responsibilityresponsibility: s 64B(2)(c) (and note s : s 64B(2)(c) (and note s 64B(3); 64B(3); and and if two+ the form of communications if two+ the form of communications about parental decisionsabout parental decisions: s 64B(2)(d) : s 64B(2)(d) (and note s 64B(4))(and note s 64B(4))



(a)(a) Parenting OrdersParenting Orders (old) child maintenance(old) child maintenance

(new) s 64B(2)(f) (non- CSAA (new) s 64B(2)(f) (non- CSAA children) (and note s 64B(5))children) (and note s 64B(5))

Also note s 64B(2)(g)(variations); s Also note s 64B(2)(g)(variations); s 64B(2)(h) DR process; s 64B(2)(i) 64B(2)(h) DR process; s 64B(2)(i) any aspect of the care, welfare or any aspect of the care, welfare or development of the child/parental development of the child/parental responsibilityresponsibility



(b)(b) Who may apply?Who may apply? s 65Cs 65C (applicant) (applicant)

parentparent cchildhild grandparentgrandparent ‘‘concerned person’concerned person’

s 69Es 69E (jurisdiction) (jurisdiction) connection to Australiaconnection to Australia



(3)(3) PARENTPARENTINGING ORDERSORDERS(c)(c) Court’s PowerCourt’s Power see s 65Dsee s 65D child must be <18 etc and not married or child must be <18 etc and not married or

in a de facto relationship: s 65Hin a de facto relationship: s 65H (new/s 65D)(new/s 65D) court’s power is subject to court’s power is subject to

presumption in s 61DA that equal shared presumption in s 61DA that equal shared parental responsibility is in child’s best parental responsibility is in child’s best interestsinterests

(new/s 65DAA)(new/s 65DAA) court to consider equal court to consider equal time/substantial time parenting time/substantial time parenting

(new/s 65DAB)(new/s 65DAB) court must also consider court must also consider the latest parenting plan (if applicable)the latest parenting plan (if applicable)


(3)(3) PARENTPARENTINGING ORDERSORDERS(c)(c) Court’s PowerCourt’s Power (new/s 65DAC)(new/s 65DAC) effect of parenting order effect of parenting order

on shared parental responsibility (ie on shared parental responsibility (ie consulting with each other)consulting with each other)

(new/s 65DAE)(new/s 65DAE) no need to consult re non- no need to consult re non-major long term issuesmajor long term issues



(d) Best Interests of Child are (d) Best Interests of Child are ParamountParamount So what does ‘best interests’ (paramountcy So what does ‘best interests’ (paramountcy

principle) actually mean?principle) actually mean? (old) (old) ss 65E (new) 65E (new) ss 60CA and 65AAss 60CA and 65AA****

(overriding consideration - ‘(overriding consideration - ‘must regard’must regard’) ) - (old) s(old) s 68F(2) (12 considerations)68F(2) (12 considerations)- (new) (new) s 60CC** (2 primary/13 additional)s 60CC** (2 primary/13 additional)- the two primary** are: meaning relationship the two primary** are: meaning relationship

with both parents with both parents andand new to protect child new to protect child from abuse etc from abuse etc

also note counselling requirement: (old) s also note counselling requirement: (old) s 65F (new) 65F (new) Div 1 Subdiv E ss 60I-60J**Div 1 Subdiv E ss 60I-60J**


We will defer these two sub-topics until We will defer these two sub-topics until after we consider sub-topic (6) on ‘best after we consider sub-topic (6) on ‘best interests’interests’

But note, the ‘best interest’ factors have But note, the ‘best interest’ factors have relevance to the ‘welfare;, ‘location’ and relevance to the ‘welfare;, ‘location’ and ‘recovery’ powers‘recovery’ powers

(4)(4) WELFARE ORDERS WELFARE ORDERS (5)(5) LOCATION AND RECOVERLOCATION AND RECOVERYY

OF CHILDRENOF CHILDREN


June 1996 - July 2006June 1996 - July 2006 s s 68E(1)68E(1) s s 68F(2) ‘factors’68F(2) ‘factors’

(a)(a) wishes of childwishes of child(b)(b) parent/child parent/child relationshiprelationship(c)(c) change of circumstanceschange of circumstances(d)(d) contact difficultiescontact difficulties(e)(e) capacity to provide for child’s capacity to provide for child’s

needsneeds(f)(f) maturity, sex and background maturity, sex and background

(including ATSI)(including ATSI)

(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLES


June 1996 - July 2006June 1996 - July 2006 s s 68E(1)68E(1) s s 68F(2) ‘factors’68F(2) ‘factors’

(g)(g) protection from abuseprotection from abuse(h)(h) parental attitudesparental attitudes(i)(i) family violencefamily violence(j)(j) family violence orderfamily violence order(k)(k) further proceedingsfurther proceedings(l)(l) any relevant fact or any relevant fact or

circumstancecircumstance



July 2006 - July 2006 - Div 1 Subdiv BA ss 60CA-60CG**Div 1 Subdiv BA ss 60CA-60CG** s 60CC(2)+(3)**s 60CC(2)+(3)** ‘considerations’ ‘considerations’ s 60CC(2)**: ‘primary’s 60CC(2)**: ‘primary’

(a)(a) Benefit of child having meaningful Benefit of child having meaningful relationship with both parentsrelationship with both parents

(b)(b) Protect child from abuse or family Protect child from abuse or family violenceviolence

s 60CC(3)**:s 60CC(3)**: ‘additional ‘additional’’(a)(a) ‘views’ of child‘views’ of child(b)(b) parent/child parent/child relationshiprelationship(c)(c) willingness of parent to facilitate and willingness of parent to facilitate and

encourage a close relationship between child and encourage a close relationship between child and other parent - also see s 60CC(4)/(4A)other parent - also see s 60CC(4)/(4A)

(d)(d) change of circumstances change of circumstances (e)(e) contact difficulties (including communication)contact difficulties (including communication)



July 2006: July 2006: s 60CC(3)**s 60CC(3)**:: ‘additional’ ‘additional’ considerations (con’t)considerations (con’t)

(f) capacity to provide for child’s needs(f) capacity to provide for child’s needs(g) maturity, sex and background/culture (g) maturity, sex and background/culture (h) ATSI children (right to enjoy culture) – also (h) ATSI children (right to enjoy culture) – also

note note s60CC(6)s60CC(6)(i)(i) parental attitudesparental attitudes(j)(j) family violence – also note family violence – also note s60CGs60CG (risk factor) (risk factor)(k)(k) family violence order – also note family violence order – also note s60CFs60CF(l)(l) further proceedingsfurther proceedings(m)(m) any relevant fact or circumstanceany relevant fact or circumstance

s 60CC(5)**s 60CC(5)**:: not mandatory considerations for not mandatory considerations for approval of consent ordersapproval of consent orders




NEW NEW PRESUMPTION/STARTING PRESUMPTION/STARTING POINT: POINT: s61DA**s61DA**

Equal shared parenting is in the best Equal shared parenting is in the best interests of the childinterests of the child: s 61DA(1): s 61DA(1)

Does NOT apply IF there is abuse or Does NOT apply IF there is abuse or family violencefamily violence: s 61DA(2): s 61DA(2)

Applies to interim orders: Applies to interim orders: s 61DA(3) and s 61DA(3) and note s 61DBnote s 61DB

May be REBUTTED IF not in the best May be REBUTTED IF not in the best interests of the child: interests of the child: s 61DA(4)s 61DA(4)


(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLESCOURT MUST CONSIDER CHILD COURT MUST CONSIDER CHILD SPENDING EQUAL TIME OR SUBSTANTIAL SPENDING EQUAL TIME OR SUBSTANTIAL TIME WITH EACH PARENT: TIME WITH EACH PARENT: s65DAA**s65DAA**

Equal time: Equal time: s65DAA(1)s65DAA(1)(a) is it in the best interests?(a) is it in the best interests?(b) is it reasonably practical? – (b) is it reasonably practical? – s65DAA(5)s65DAA(5)(c) if so, consider making the order(c) if so, consider making the order

Substantial and significant time: Substantial and significant time: s65DAA(2)s65DAA(2) (when not (when not equal time – again best interests and practicability equal time – again best interests and practicability consideredconsidered


(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLES See See Goode v GoodeGoode v Goode (2006)(2006) 36 Fam LR 422; (2006) 36 Fam LR 422; (2006)

FLC 93-286; [2006] FamCA 1346 FLC 93-286; [2006] FamCA 1346 (per Bryant CJ, Finn and (per Bryant CJ, Finn and Boland JJ)Boland JJ)

there is a difference between parental responsibility which there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC responsibility, which has the effect set out in s 65DAC [at 39][at 39]

when making a parenting order in relation to a child, the when making a parenting order in relation to a child, the court must apply the presumption that it is in the best court must apply the presumption that it is in the best interests of the child for the parents to have equal shared interests of the child for the parents to have equal shared parental responsibilityparental responsibility [at 43][at 43]


(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLES See See Goode v GoodeGoode v Goode (2006)(2006) even if the presumption of equal shared parental even if the presumption of equal shared parental

responsibility is not applied and neither party seeks an responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and order for equal time (or by implication substantial and significant time), the court is nonetheless required to significant time), the court is nonetheless required to consider, in determining what is in the best interests of consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s the child, the arrangements that will promote the child’s best interests best interests [at 47][at 47]

effect of the 2006 amendments?effect of the 2006 amendments? [at 65] - see summary [at 65] - see summary pp 8-9 of M&Y text updatepp 8-9 of M&Y text update


(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLES See See Goode v GoodeGoode v Goode (2006)(2006) interim orders issue and interim orders issue and Cowling Cowling (1998) 22 Fam LR 776; (1998) 22 Fam LR 776;

FLC 92-801 FLC 92-801 – needs to be – needs to be reconsidered in light of the changes reconsidered in light of the changes to the Actto the Act [at 71] (see pp 310-314 M&Y and pp 18-20 update) [at 71] (see pp 310-314 M&Y and pp 18-20 update)

it can be fairly said there is a legislative intent evinced in it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect time spent with children, subject to the need to protect children from harm, from abuse and family violence and children from harm, from abuse and family violence and provided it is in their best interests and reasonably provided it is in their best interests and reasonably practicablepracticable [at 72] [at 72]


(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLES See See Goode v GoodeGoode v Goode (2006)(2006) 36 Fam LR 422; 36 Fam LR 422;

(2006) FLC 93-286; [2006] FamCA 1346 (2006) FLC 93-286; [2006] FamCA 1346 (per (per Bryant CJ, Finn and Boland JJ)Bryant CJ, Finn and Boland JJ)

in this case the trial judge, once he had determined in this case the trial judge, once he had determined that the presumption under s 61DA(1) did not that the presumption under s 61DA(1) did not apply, did not address the matters in s 60CC(2) or apply, did not address the matters in s 60CC(2) or (3). As noted, maintenance of the status quo, as (3). As noted, maintenance of the status quo, as sanctioned by sanctioned by CowlingCowling, is insufficient to meet the , is insufficient to meet the requirements under s 60CC, and the trial judge requirements under s 60CC, and the trial judge erred in not giving consideration to those matterserred in not giving consideration to those matters [at 110]. [at 110].


(6)(6) BEST INTERESTS PRINCIPLESBEST INTERESTS PRINCIPLES((a) a) Wishes/Views of the childWishes/Views of the child see (old) s 68F(2)(a) see (old) s 68F(2)(a) (new) s 60CC(3)(a)**(new) s 60CC(3)(a)** family reports: (old) sfamily reports: (old) ss s 68G, 62G (new) s 68G, 62G (new) s

60CD**60CD** (family report, ICL, (family report, ICL, FLRFLR)) children’s evidence: see children’s evidence: see FLRFLR right to silence: (old) s 68H (new) right to silence: (old) s 68H (new) s 60CE**s 60CE**


(6)(6) BEST INTERESTS BEST INTERESTS PRINCIPLESPRINCIPLES

(b)(b) Parent-childParent-child r’ship r’ship see (old) s68F(2)(b)see (old) s68F(2)(b) (new) (new) s60CC(3)(b)s60CC(3)(b) family reports: family reports: s62Gs62G meaning of meaning of ‘‘other personsother persons’’?? ‘‘mother’ principle?mother’ principle? ‘‘natural parent’ principle?natural parent’ principle? ‘‘surrogacy’ issue?surrogacy’ issue?



(c)(c) Likely effect of any Likely effect of any changeschanges see (old) s68F(2)(c)see (old) s68F(2)(c) (new) (new) s60CC(3)(d)s60CC(3)(d) desirability of preserving the ‘status quo’desirability of preserving the ‘status quo’ separation of siblingsseparation of siblings



(d)(d) Relocation Relocation && CContactontact see (old) ssee (old) s 68F(2)(d)68F(2)(d) (new) (new) s60CC(3)(e)s60CC(3)(e) what does ‘contact’ mean?what does ‘contact’ mean? Part VII object: Part VII object: ss 60B(2)(b)60B(2)(b) s s 60D definition – 60D definition – ss 64B(4)64B(4) presumption in favour?presumption in favour? unacceptable risk?unacceptable risk? presumption against non-parents?presumption against non-parents?


(6)(6) BEST INTERESTS BEST INTERESTS PRINCIPLESPRINCIPLES(d)(d) Relocation Relocation && CContactontact relocation and contact ordersrelocation and contact orders

see see B and BB and B (1997 (1997)) Full Court Full Court relevant considerationsrelevant considerations

degree and quality of existing degree and quality of existing relationship with residence parent and relationship with residence parent and contact parentcontact parent

reason for relocationreason for relocationdistance and permanency of relocationdistance and permanency of relocationeffects on the child of relocationeffects on the child of relocation


(6)(6) BEST INTERESTS BEST INTERESTS PRINCIPLESPRINCIPLES(d)(d) Relocation Relocation && CContactontact relocation and contact ordersrelocation and contact orders

Note: HC in Note: HC in U v UU v U (2002 (2002) re-affirms ) re-affirms ‘paramountcy principle’ ‘paramountcy principle’ cf A and Acf A and A (2000) (2000)

Also see recent cases like Also see recent cases like M & SM & S [2006] [2006] FamCA FamCA 1408 (per Dessau J) – no special relocation 1408 (per Dessau J) – no special relocation provision and no onus on re-locator under provision and no onus on re-locator under recent changes – recent changes – court is directed by the FLA court is directed by the FLA ‘squarely to maintaining the important ‘squarely to maintaining the important relationship between a child and his/her parents. relationship between a child and his/her parents. But the child’s best interests remain the court’s But the child’s best interests remain the court’s paramount consideration’paramount consideration’ [at 39] [at 39]



(e)(e) Racial, Cultural and Racial, Cultural and Religious IssuesReligious Issues see (old) ssee (old) s 68F(2)(f)68F(2)(f) (new) (new) s60CC(3)(g)+(h)s60CC(3)(g)+(h) also see (old) s 68F(2)(l)also see (old) s 68F(2)(l) (new) (new) s60CC(3)(m)s60CC(3)(m) re religion: court may examine re religion: court may examine

‘tenets and practices’‘tenets and practices’



(f)(f) Sexual orientation of Sexual orientation of parentsparents see (old) ssee (old) s 68F(2)(l)68F(2)(l) (new) (new) s60CC(3)(m)s60CC(3)(m) L and L L and L (1983)(1983) criteria criteria L and L L and L correctness doubted by Nicholson correctness doubted by Nicholson

CJ in a 1996 speech (see 1997 CJ in a 1996 speech (see 1997 AJFLAJFL article “Changing Concept of the Family”)article “Changing Concept of the Family”)



(g)(g) Family ViolenceFamily Violence child abuse allegations: child abuse allegations: s 67Zs 67Z (details to (details to

be reported to be reported to DOCSDOCS)) see see (old) s (old) s 68F(2)(g) (new) 68F(2)(g) (new) s 60CC(2)(b)s 60CC(2)(b) civil standard of proof (but civil standard of proof (but s 140 Evidence s 140 Evidence

Act 1995/Act 1995/BriginshawBriginshaw standard applies): standard applies): Re W Re W (2004)(2004)

false accusations: false accusations: Re David Re David (1997)(1997) also see (old) s also see (old) s 68F(2)(68F(2)(ii) and s) and s 68F(2)(68F(2)(jj)) (new) s 60CC(3)(j)+(k)(new) s 60CC(3)(j)+(k) aalso see Division 11 (in particular lso see Division 11 (in particular s 68Ts 68T))


s s 6677ZC(1)ZC(1) (power) (power)

s s 67ZC(2)67ZC(2) (consideration) (consideration)[[ie back to old s68F(2) ie back to old s68F(2) new s new s 60CC(2)/(3)**60CC(2)/(3)**]]

s s 69C69C (applicant) (applicant)

how wide is this power?how wide is this power?

medical/medical/sterilisation casessterilisation cases

(4)(4) WELFARE ORDERSWELFARE ORDERS


(a)(a) Intra/Interstate Child AbductionIntra/Interstate Child Abduction Obligations/Hindering or interfering with a Obligations/Hindering or interfering with a

(parenting) order: (parenting) order: s 65Ms 65M (lives with) (lives with) s 65Ns 65N (spends time with) (spends time with) s 65NAs 65NA (communicates with) (communicates with) – also note – also note s 65Ps 65P FLAFLA

Warrant may be issued: Warrant may be issued: s 65Qs 65Q FLAFLA Parental Compliance Regime – Stage 2 Parental Compliance Regime – Stage 2

‘education course’?‘education course’? Stage 3 ‘penalties’ include imprisonment, fine, Stage 3 ‘penalties’ include imprisonment, fine,

GBB, sentencing alternative: GBB, sentencing alternative: Pt VII Div 13APt VII Div 13A

(5)(5) LOCATION AND RECOVERLOCATION AND RECOVERYY OF OF CHILDRENCHILDREN


(a)(a) Intra/Interstate Child Intra/Interstate Child AbductionAbduction (i)(i) Location OrderLocation Order

s s 67J (definition)67J (definition) s s 67M(3) (power)67M(3) (power) s s 67K (applicant)67K (applicant) s s 67L (overriding principle)67L (overriding principle)

(ii)(ii) Recovery OrderRecovery Order s s 67Q (definition)67Q (definition) s s 67T (applicant)67T (applicant) s s 67U ( power)67U ( power) s s 67V67V (overriding principles)(overriding principles)




(b)(b) InternationInternationalal Child Abduction Child Abduction s s 65Y/65Z65Y/65Z offence offence ss 65ZA/65ZBss 65ZA/65ZB aircraft etc owners aircraft etc owners Hague Convention Civil Aspects of International Hague Convention Civil Aspects of International

Child Abduction Child Abduction (1980)(1980) s s 111B111B FLAFLA (note (note FLAAFLAA 2000 and 2000 and FLAA FLAA 2003 2003

changes)changes) Family Law (Child Abduction Convention) Family Law (Child Abduction Convention)

RegulationsRegulations what about what about non-Hague cases (non-Hague cases (appropriate forum appropriate forum

test or best interests testtest or best interests test ) )??


see see ss 68L68L (independent children’s lawyer) (independent children’s lawyer) applicant: applicant: ss 68L(3)68L(3) order child be available: order child be available: ss 68M68M who represents? Lwho represents? Legal egal AAid? id? s 116Cs 116C who pays?who pays? note note s 68L(2A)s 68L(2A) strict test for Hague matters strict test for Hague matters role of separate reprole of separate rep

cross examine partiescross examine parties evidence in chiefevidence in chief evidence of wishesevidence of wishes

(new) (new) s 68LAs 68LA also see 2003 ‘Guidelines’/Law Soc Rep’n also see 2003 ‘Guidelines’/Law Soc Rep’n

PrinciplesPrinciples

(7)(7) SEPARATE REPRESENTATION OF SEPARATE REPRESENTATION OF CHILDREN (ICL)CHILDREN (ICL)


criteria for appointment of ICL? criteria for appointment of ICL? see FC guidelines in see FC guidelines in Re K Re K (1994)(1994) AbuseAbuse Intractable conflictIntractable conflict Child-parent alienationChild-parent alienation Cultural or religious differencesCultural or religious differences Sexual preferencesSexual preferences Party’s conductParty’s conduct Illness issuesIllness issues

(7)(7) SEPARATE REPRESENTATION OF SEPARATE REPRESENTATION OF CHILDRENCHILDREN


Re K Re K (1994) (con’t)(1994) (con’t) Neither parent seems a suitable custodianNeither parent seems a suitable custodian Mature child/strong views – effect changes Mature child/strong views – effect changes

long standing custody or access deniallong standing custody or access denial Relocation (& consequential access Relocation (& consequential access

problem)problem) Proposed to separate siblingsProposed to separate siblings Cases where neither party legally Cases where neither party legally

representedrepresented Welfare jurisdiction and a medical procedure Welfare jurisdiction and a medical procedure In circumstances of case it is appropriate In circumstances of case it is appropriate

(but failure to do so should not lead to (but failure to do so should not lead to appeal)appeal)

(7)(7) SEPARATE REPRESENTATION OF SEPARATE REPRESENTATION OF CHILDRENCHILDREN


see ssee s 60B(2)(d) 60B(2)(d) defined: sdefined: s 63C(1)63C(1) must be explained: s 63DAmust be explained: s 63DA may be registered (to Jan 2004 ONLY): smay be registered (to Jan 2004 ONLY): s 63E63E may include child support/maintenance: ss 63CAA, may include child support/maintenance: ss 63CAA,

63G63G restricts courts powersrestricts courts powers to subsequently act to subsequently act: s: s 63H63H Note (new) s 64D: parenting orders subject to later Note (new) s 64D: parenting orders subject to later

parenting plansparenting plans Note (new) s 65DAB: court is to have regard to the Note (new) s 65DAB: court is to have regard to the

terms of the most recent parenting plan if doing so terms of the most recent parenting plan if doing so would be in the best interests of the childwould be in the best interests of the child..

(8)(8) PARENTING PLANSPARENTING PLANS


Three stage compliance regime: Three stage compliance regime: Division 13ADivision 13A ( (FLAA FLAA 2000)2000)

Stage 1Stage 1:: ExplanationExplanation: to improve : to improve communication and educate parentscommunication and educate parents

Stage 2:Stage 2: EducationEducation: remedial : remedial measures to improve parenting measures to improve parenting (education programs)(education programs)

(9)(9) PARENTING COMPLIANCE PARENTING COMPLIANCE REGIMEREGIME


Three stage compliance regime: Three stage compliance regime: Division 13ADivision 13A ( (FLAA FLAA 2000) (con’t)2000) (con’t)

Stage 3:Stage 3: EnforcementEnforcement: last resort : last resort … traditional measures and penalties … traditional measures and penalties for enforcement and dealing with for enforcement and dealing with inexcusable intentional breaches inexcusable intentional breaches (fine, imprisonment, bond, CSO)(fine, imprisonment, bond, CSO)

(9)(9) PARENTING COMPLIANCE PARENTING COMPLIANCE REGIMEREGIME

family law topic 51 family law topic 5: parenting disputes

Documents

topic family law topic

family law council

family law amendment

family law act object

comments family law

convention of rights

parental powers

protection act