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FAMILY LAW

FAMILY LAW. TOPIC 5: PARENTING DISPUTES. CAUTION. This PPT does NOT reflect the amendments which came into effect on 7 June 2012. (1) PARENTAL POWERS AND RESPONSIBILITIES. (a) Common Law ‘ guardianship’ and ‘custody’ l ong term vs short term parental rights (egs) - name of child

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FAMILY LAW

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  1. FAMILY LAW TOPIC 5: PARENTING DISPUTES Family Law Topic 5

  2. CAUTION This PPT does NOT reflect the amendments which came into effect on 7 June 2012. Family Law Topic 5

  3. (1) PARENTAL POWERS AND RESPONSIBILITIES (a) Common Law • ‘guardianship’ and ‘custody’ long termvs short term • parental rights (egs) - name of child - where child resides • (and ‘access’) • diminishing nature of parental rights? see Gillick (UK) Marion (Aust) Family Law Topic 5

  4. (1) PARENTAL POWERS AND RESPONSIBILITIES (a) Common Law • In Gillick v West Norfolk and Weisbech Area Health Authority (1986) AC 112 Lord Scarman stated: ... Parental rights yields to the child's rights to make his own decisions when he [or she] reaches a sufficient understanding and intelligence to be capable of making up his [or her] mind on the matter requiring decision (at p 186). Family Law Topic 5

  5. (b) State and Territory Laws (i) parens patriae jurisdiction • Origins in Chancery (Equity) • G -v- P (1977) VR 44: ... in all matters relating to the custody, guardianship and welfare of all infants, whether born in or out of wedlock (at p 46). (ii) wardship • ward of the court (parens patriae) • ward of the state: Children and Young Persons (Care and Protection) Act 1998 Family Law Topic 5

  6. 1924 Geneva Declaration 1959 UN Declaration 1979 International Year of the Child 1989 Convention 1990 Australia ratifies The United Nations Convention on the Rights of the Child (UNCROC) Family Law Topic 5

  7. Family Law Topic 5

  8. (c) Part VII Family Law Act UN Convention of Rights of the Child 1989 (UNCROC) • (UK) Children Act 1989 • Joint Select Committee 1992 • Government Response 1993 • Family Law Council (etc) comments • Family Law Reform Act 1995 (a new Pt VII of the FLA) (June 1996) • Family Law Amendment (Shared Parental Responsibility) 2006 (July 2006) Family Law Topic 5

  9. (c) Part VII Family Law Act • Object of Part VII see s60B (**new in 2006) • Children’s rights: to ensure that the best interests of the children are met by: • meaningful relationship with both parents: s60B(1)(a)** • protecting children from abuse: s60B(1)(b)** • ensuring children receive adequate and proper parenting s60B(1)(c)** • ensuring parents fulfil their duties and meet their responsibilities: s60B(1)(d)** Family Law Topic 5

  10. (c) Part VII Family Law Act • Object of Part VII/children’s rights • right to know and be cared for by both parents: s60B(2)(a) • right to regular contact with parents and significant others: s60B(2)(b) • parents jointly share duties and responsibilities: s60B(2)(c)** • parents should agree about future parenting: s60B(2)(d) • right to enjoy their culture: s60B(2)(e)** Family Law Topic 5

  11. (c) Part VII Family Law Act Parental Responsibility • shared by parents (equally?) • see s60B(2)(c), 61C • examples include: • providing a home • having contact • Protecting and maintaining • determining education and religious needs • consenting to medical treatment Family Law Topic 5

  12. (c) Part VII Family Law Act Part VII – Divisions 1.Objectives (new subdivisions**) 2. Concept of Parental Responsibility 3. Counselling 4. Parenting Plans 5. Parenting Orders 6. ‘Nuts and Bolts’ of Parenting Orders 7. Child Maintenance 8. ‘Other Matters’ Family Law Topic 5

  13. (c) Part VII Family Law Act Part VII – Divisions (con’t) 9. Injunctions 10. Best Interests Principles 11. Family Violence 12. Jurisdiction 13. Registering State, Territory or Overseas Orders 13A. Parenting Compliance Regime (including contempt) Family Law Topic 5

  14. (d) Change of name issue • Parental responsibility • Remedy – injunction s 68B • Consent? • Welfare of child? Family Law Topic 5

  15. (2) PARENTAGE OF CHILDREN (a) Legitimacy • filius nullius • Marriage Act 1961 see ss89, 91, 92 (b) Equality of Status Legislation • Status of Children Act 1996 Family Law Topic 5

  16. (2) PARENTAGE OF CHILDREN (c) Establishing the Parentage of Children • mater sempter certa est pater incertus est • parentage presumptions • marriage: s69P • defacto relationship: s69Q • birth certificate: s69R • court findings: s69S • acknowledgment: s69T • presumptions are rebuttable see s69U (civil standard) Family Law Topic 5

  17. (2) PARENTAGE OF CHILDREN (d) Parentage Evidence Note ss 69V and 69VA (i)physical appearance? (ii)blood group evidence? (iii) DNA (deoxyribonucleic acid molecule) (iv)court enforcement? s69W (court request) s69X (types of orders) and Regulations (v) failure to comply s69Y (adults)/ s69Z (children) Also note ss 69ZA-ZD Family Law Topic 5

  18. (2) PARENTAGE OF CHILDREN Paternity tests rise (Sun-Herald, 27.3.05) The use of DNA paternity tests has increased by more than 60 per cent over the past three years, say Australian testing laboratories. Scientists estimate that 5000 tests are expected this year, up from 3000 in 2002. 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 of those who demand a paternity test have that fear confirmed. Men from poorer backgrounds comprise the bulk of those tested. Family Law Topic 5

  19. (2) PARENTAGE OF CHILDREN (e) Surrogacy • State laws – parentage presumptions under Status of Children Act 1996 • s 14 SOCA – irrebuttable presumption (legal fiction created) • s 60H FLA (effect?) • Relevance of contract law and promissory estoppel? • Best interests test applies Family Law Topic 5

  20. (3) PARENTING ORDERS (a) Parenting Orders • s 61D/s 64B (new) s 64B(2) • alters shared parental responsibility • (old) residence (new) – lives with: s 64B(2)(a) • (old) contact (new) time child spends with: s 64B(2)(b); communication (with): s 64B(2)(e) Family Law Topic 5

  21. (3) PARENTING ORDERS (a) Parenting Orders • (old) specific issues (new) allocation of parental responsibility: s 64B(2)(c) (and note s 64B(3); and if two+ the form of communications about parental decisions: s 64B(2)(d) (and note s 64B(4)) Family Law Topic 5

  22. (3) PARENTING ORDERS (a) Parenting Orders • (old) child maintenance (new) s 64B(2)(f) (non- CSAA children) (and note s 64B(5)) • Also note s 64B(2)(g)(variations); s 64B(2)(h) DR process; s 64B(2)(i) any aspect of the care, welfare or development of the child/parental responsibility Family Law Topic 5

  23. (3) PARENTING ORDERS (b) Who may apply? • s 65C (applicant) • parent • child • grandparent • ‘concerned person’ • s 69E (jurisdiction) • connection to Australia Family Law Topic 5

  24. (3) PARENTING ORDERS (c) Court’s Power • see s 65D • child must be <18 etc and not married or in a de facto relationship: s 65H • (new/s 65D) court’s power is subject to presumption in s 61DA that equal shared parental responsibility is in child’s best interests • (new/s 65DAA) court to consider equal time/substantial time parenting • (new/s 65DAB) court must also consider the latest parenting plan (if applicable) Family Law Topic 5

  25. (3) PARENTING ORDERS (c) Court’s Power • (new/s 65DAC) effect of parenting order on shared parental responsibility (ie consulting with each other) • (new/s 65DAE) no need to consult re non-major long term issues Family Law Topic 5

  26. (3) PARENTING ORDERS (d) Best Interests of Child are Paramount • So what does ‘best interests’ (paramountcy principle) actually mean? • (old) s65E (new) ss 60CA and 65AA** (overriding consideration - ‘must regard’) • (old) s68F(2) (12 considerations) • (new) s 60CC** (2 primary/13 additional) • the two primary** are: meaning relationship with both parents and new to protect child from abuse etc • also note counselling requirement: (old) s 65F (new) Div 1 Subdiv E ss 60I-60J** Family Law Topic 5

  27. WELFARE ORDERS (5) LOCATION AND RECOVERY OF CHILDREN • We will defer these two sub-topics until after we consider sub-topic (6) on ‘best interests’ • But note, the ‘best interest’ factors have relevance to the ‘welfare;, ‘location’ and ‘recovery’ powers Family Law Topic 5

  28. (6) BEST INTERESTS PRINCIPLES • June 1996 - July 2006 • s 68E(1) • s 68F(2) ‘factors’ (a) wishes of child (b) parent/child relationship (c) change of circumstances (d) contact difficulties (e) capacity to provide for child’s needs (f) maturity, sex and background (including ATSI) Family Law Topic 5

  29. (6) BEST INTERESTS PRINCIPLES • June 1996 - July 2006 • s 68E(1) • s 68F(2) ‘factors’ (g) protection from abuse (h) parental attitudes (i) family violence (j) family violence order (k) further proceedings (l) any relevant fact or circumstance Family Law Topic 5

  30. (6) BEST INTERESTS PRINCIPLES • July 2006 - Div 1 Subdiv BA ss 60CA-60CG** • s 60CC(2)+(3)** ‘considerations’ • s 60CC(2)**: ‘primary’ (a) Benefit of child having meaningful relationship with both parents (b) Protect child from abuse or family violence • s 60CC(3)**: ‘additional’ (a) ‘views’ of child (b) parent/child relationship (c) willingness of parent to facilitate and encourage a close relationship between child and other parent - also see s 60CC(4)/(4A) (d) change of circumstances (e) contact difficulties (including communication) Family Law Topic 5

  31. (6) BEST INTERESTS PRINCIPLES • July 2006: s 60CC(3)**: ‘additional’ considerations (con’t) (f) capacity to provide for child’s needs (g) maturity, sex and background/culture (h) ATSI children (right to enjoy culture) – also note s60CC(6) (i) parental attitudes (j) family violence – also note s60CG (risk factor) (k) family violence order – also note s60CF (l) further proceedings (m) any relevant fact or circumstance • s 60CC(5)**: not mandatory considerations for approval of consent orders Family Law Topic 5

  32. (6) BEST INTERESTS PRINCIPLES NEW PRESUMPTION/STARTING POINT: s61DA** • Equal shared parenting is in the best interests of the child: s 61DA(1) • Does NOT apply IF there is abuse or family violence: s 61DA(2) • Applies to interim orders: s 61DA(3) and note s 61DB • May be REBUTTED IF not in the best interests of the child: s 61DA(4) Family Law Topic 5

  33. (6) BEST INTERESTS PRINCIPLES COURT MUST CONSIDER CHILD SPENDING EQUAL TIME OR SUBSTANTIAL TIME WITH EACH PARENT: s65DAA** • Equal time: s65DAA(1) (a) is it in the best interests? (b) is it reasonably practical? – s65DAA(5) (c) if so, consider making the order • Substantial and significant time: s65DAA(2) (when not equal time – again best interests and practicability considered Family Law Topic 5

  34. (6) BEST INTERESTS PRINCIPLES • See Goode v Goode(2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346 (per Bryant CJ, Finn and Boland JJ) • there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC [at 39] • when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility[at 43] Family Law Topic 5

  35. (6) BEST INTERESTS PRINCIPLES • See Goode v Goode(2006) • even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests [at 47] • effect of the 2006 amendments? [at 65] - see summary pp 8-9 of M&Y text update Family Law Topic 5

  36. (6) BEST INTERESTS PRINCIPLES • See Goode v Goode(2006) • interim orders issue and Cowling (1998) 22 Fam LR 776; FLC 92-801 – needs to be reconsidered in light of the changes to the Act [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 favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable [at 72] Family Law Topic 5

  37. (6) BEST INTERESTS PRINCIPLES • See Goode v Goode(2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346 (per Bryant CJ, Finn and Boland JJ) • in this case the trial judge, once he had determined that the presumption under s 61DA(1) did not apply, did not address the matters in s 60CC(2) or (3). As noted, maintenance of the status quo, as sanctioned by Cowling, is insufficient to meet the requirements under s 60CC, and the trial judge erred in not giving consideration to those matters [at 110]. Family Law Topic 5

  38. (6) BEST INTERESTS PRINCIPLES (a) Wishes/Views of the child • see (old) s 68F(2)(a) (new) s 60CC(3)(a)** • family reports: (old) ss 68G, 62G (new) s 60CD** (family report, ICL, FLR) • children’s evidence: see FLR • right to silence: (old) s 68H (new) s 60CE** Family Law Topic 5

  39. (6) BEST INTERESTS PRINCIPLES (b)Parent-child r’ship • see (old) s68F(2)(b) • (new) s60CC(3)(b) • family reports: s62G • meaning of ‘other persons’? • ‘mother’ principle? • ‘natural parent’ principle? • ‘surrogacy’ issue? Family Law Topic 5

  40. (6) BEST INTERESTS PRINCIPLES (c) Likely effect of any changes • see (old) s68F(2)(c) • (new) s60CC(3)(d) • desirability of preserving the ‘status quo’ • separation of siblings Family Law Topic 5

  41. (6) BEST INTERESTS PRINCIPLES (d) Relocation &Contact • see (old) s68F(2)(d) • (new) s60CC(3)(e) • what does ‘contact’ mean? • Part VII object: s60B(2)(b) • s 60D definition – s64B(4) • presumption in favour? • unacceptable risk? • presumption against non-parents? Family Law Topic 5

  42. (6) BEST INTERESTS PRINCIPLES (d) Relocation &Contact • relocation and contact orders • see B and B (1997) Full Court • relevant considerations • degree and quality of existing relationship with residence parent and contact parent • reason for relocation • distance and permanency of relocation • effects on the child of relocation Family Law Topic 5

  43. (6) BEST INTERESTS PRINCIPLES (d) Relocation &Contact • relocation and contact orders • Note: HC in U v U (2002) re-affirms ‘paramountcy principle’ cf A and A (2000) • Also see recent cases like M & S [2006] FamCA 1408 (per Dessau J) – no special relocation provision and no onus on re-locator under recent changes – court is directed by the FLA ‘squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration’ [at 39] Family Law Topic 5

  44. (6) BEST INTERESTS PRINCIPLES (e) Racial, Cultural and Religious Issues • see (old) s68F(2)(f) • (new) s60CC(3)(g)+(h) • also see (old) s 68F(2)(l) • (new) s60CC(3)(m) • re religion: court may examine ‘tenets and practices’ Family Law Topic 5

  45. (6) BEST INTERESTS PRINCIPLES (f) Sexual orientation of parents • see (old) s68F(2)(l) • (new) s60CC(3)(m) • L and L (1983) criteria • L and L correctness doubted by Nicholson CJ in a 1996 speech (see 1997 AJFL article “Changing Concept of the Family”) Family Law Topic 5

  46. (6) BEST INTERESTS PRINCIPLES (g) Family Violence • child abuse allegations: s 67Z (details to be reported to DOCS) • see (old) s 68F(2)(g) (new) s 60CC(2)(b) • civil standard of proof (but s 140 Evidence Act 1995/Briginshawstandard applies): Re W (2004) • false accusations: Re David (1997) • also see (old) s 68F(2)(i) and s68F(2)(j) • (new) s 60CC(3)(j)+(k) • also see Division 11 (in particular s 68T) Family Law Topic 5

  47. (4) WELFARE ORDERS • s 67ZC(1) (power) • s 67ZC(2) (consideration) [ie back to old s68F(2) new s 60CC(2)/(3)**] • s 69C (applicant) • how wide is this power? • medical/sterilisation cases Family Law Topic 5

  48. (5) LOCATION AND RECOVERY OF CHILDREN (a) Intra/Interstate Child Abduction • Obligations/Hindering or interfering with a (parenting) order: s 65M (lives with) s 65N (spends time with) s 65NA (communicates with) – also note s 65PFLA • Warrant may be issued: s 65QFLA • Parental Compliance Regime – Stage 2 ‘education course’? • Stage 3 ‘penalties’ include imprisonment, fine, GBB, sentencing alternative: Pt VII Div 13A Family Law Topic 5

  49. (5) LOCATION AND RECOVERY OF CHILDREN (a) Intra/Interstate Child Abduction (i) Location Order • s 67J (definition) • s 67M(3) (power) • s 67K (applicant) • s 67L (overriding principle) (ii)Recovery Order • s 67Q (definition) • s 67T (applicant) • s 67U ( power) • s 67V(overriding principles) Family Law Topic 5

  50. (5) LOCATION AND RECOVERY OF CHILDREN (b) International Child Abduction • s 65Y/65Z offence • ss 65ZA/65ZB aircraft etc owners • Hague Convention Civil Aspects of International Child Abduction (1980) • s 111BFLA(note FLAA 2000 and FLAA 2003 changes) • Family Law (Child Abduction Convention) Regulations • what about non-Hague cases (appropriate forum test or best interests test )? Family Law Topic 5

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