Presentation on theme: " Introduction of the Family Law Act (“FLA”) in 1976 – key concepts – guardianship, custody and access Family Law Reform Act 1995 – new concepts – parental."— Presentation transcript:
Introduction of the Family Law Act (“FLA”) in 1976 – key concepts – guardianship, custody and access Family Law Reform Act 1995 – new concepts – parental responsibility, residence and contact and specific issues (dealing with issues concerning parental responsibility such of schooling, change of name etc) New objects section 60B S65E – best interests of the child paramount S68F(2) – determining best interests – 12 factors listed
the then Federal Attorney General stated that “These are the most significant reforms to the Family Law system in 30 years. The initiatives represent a generation of change in Family Law and aim to bring about a cultural shift in how family separation is managed – away from litigation and towards cooperative parenting solution. The government wants to change the way people think about family breakdowns, and to improve outcomes for children. The government is reforming the system to promote shared or cooperative parenting”
The 2006 reforms changed the substantive law and legal process but the key issue is the disjunction between the ideal of shared parenting and actual parenting behaviour. See Belinda Fehlberg and Juliet Behrens Australian Family Law: The Contemporary Context Oxford University Press, Melbourne, 2008 page 226 2006 terminology – equal shared parental responsibility, lives with, spends time with
meaningful relationship with both parents: s 60B(1)(a) protecting children from abuse: s 60B(1)(b) ensuring children receive adequate and proper parenting s 60B(1)(c) ensuring parents fulfil their duties and meet their responsibilities: s 60B(1)(d) right to know and be cared for by both parents: s 60B(2)(a) right to regular time with parents and significant others: s 60B(2)(b) parents jointly share duties and responsibilities: s 60B(2)(c) parents should agree about future parenting: s 60B(2)(d) right to enjoy their culture: s 60B(2)(e)
s60CA child’s best interests paramount s60CC determination of best interests s60CD how the views of a child are expressed s60CE child not required to express a view s61C parental responsibility s61D parenting orders and parental responsibility s61DA presumption of equal shared parental responsibility s64 meaning of parenting orders s65C who may apply for a parenting order s65DAA equal time, substantial and significant time, reasonable practicability s65DAC effect of parenting order providing for shared parental responsibility s65DAE no need to consult on issues not major long-term issues s4 definition major long-term issues These are discussed further below
Australia ratified UN Convention on Rights of Child 17 December 1990. Most comprehensive statement children’s rights at international level Convention had some significance in 1995 reforms. Arguably not adequately reflected child’s right to be heard. Article 3 best interests of a child shall be a primary consideration This is less stringent than requirement under FLA best interests paramount Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 found that Convention could be referred to in interpreting Part VII 1995 reforms important guardianship/custody/access gone. New focus on parental responsibility. Concerned old terminology had encouraged people to think of themselves as winners and losers. Recent years hear more about children’s rights and debate about children participating in court proceedings and mediation.
who is a parent? question of who is parent of child is important family law for following reasons: - parents of the child have parental responsibility prior to making a court order: s61C - child support exclusively parents Most references in FLA where refer to parents also include other persons. Parental responsibility can be allocated to non- parents. Term parent not defined exclusively FLA.
I ncreasing use technology in the conception of children which is challenging for the law and ethics. S60H and s60HA FLA amended in 2008 Re Patrick: An Application concerning Contact  FLC 93-096 – sperm donor is not a parent. Re Evelyn  FLC 92-807;  FLC 92-817 – surrogacy arrangement - highlights the emotional difficulties which can arise Re Mark: An Application relating to Parental Responsibilities  FLC 93-173 – gay couple surrogacy arrangement PJ v DoCS  NSWSC 340
State laws – parentage presumptions under Status of Children Act 1996 s 14 SOCA – irrebuttable presumption (legal fiction created) s 60H and s60HA FLA amendments were made in 2008 as part of the De facto reforms.
Presumptions of parentage arising out of use of fertilisation procedures 14 Presumptions of parentage arising out of use of fertilisation proceduresfertilisation procedures (1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:marriedfertilisation procedure (a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, andhusband (b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure. (1A) When a woman who is in a de facto relationship with another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:de facto relationshipfertilisation procedure (a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and (b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.married fertilisation procedurehusband (3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).married fertilisation procedure (4) Any presumption arising under subsections (1)-(3) is irrebuttable. (5) In any proceedings in which the operation of subsection (1) is relevant, a husband’s consent to the carrying out of the fertilisation procedure is presumed.husbandfertilisation procedure (5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a fertilisation procedure that results in the pregnancy of her de facto partner is presumed.fertilisation procedurede facto partner (6) In this section: (a) a reference to a married woman includes a reference to a woman who is in a de facto relationship with a man, andmarriedde facto relationship (b) a reference (however expressed) to the husband or wife of a person:husbandwife (i) is, in a case where the person is in a de facto relationship with a person of the opposite sex, a reference to that other person, andde facto relationship (ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.married (7) In this section: "de facto partner", in relation to a person, means the other party to a de facto relationship with the person. "de facto relationship" has the same meaning as in the Property (Relationships) Act 1984.de facto relationshipProperty (Relationships) Act1984
(1) If (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); andchild artificial conception procedureparent (b) either: (i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; orparentartificial conception procedure (ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;State Territorychild parent then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:child parentthis Act (c) the child is the child of the woman and of the other intended parent; andchild parent (d) if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.parentchild
(2) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; andchildartificial conception procedure (b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;StateTerritorychild then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.child this Act (3) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; andchildartificial conception procedure (b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;StateTerritorychild then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.child this Act (5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.artificial conception procedure (6) In this section: "this Act" includes: (a) the standard Rules of Court; andstandard Rules of Court (b) the related Federal Magistrates Rules.related Federal Magistrates Rules
(1) If a court has made an order under a prescribed law of a State or Territory to the effect that:courtmadeStateTerritory (a) a child is the child of one or more persons; orchild (b) each of one or more persons is a parent of a child;parent child then, for the purposes of this Act, the child is the child of each of those persons.this Actchild (2) In this section: "this Act" includes: (a) the standard Rules of Court; and (b) the related Federal Magistrates Rules.standard Rules of Court related Federal Magistrates Rules
See Keaton & Aldridge  Pascoe CFM held that the parties were not in a de facto relationship at the time of the artificial conception procedure and therefore the applicant could not rely on the presumption in amended s60H. See also Re Michael: Surrogacy Arrangements  FamCA 691 for an example of how the new provisions can lead to strange results. Application for leave to adopt a child born as a result of a family surrogacy arrangement.
legitimacy Common law distinguished between legitimate and illegitimate children – illegitimate children no one was legally responsible for them. They couldn’t inherit. These were overcome in the 1970s when various jurisdictions passed status of children legislation. equality of status legislation See Status of Children Act 1996 (NSW), esp. s14
Parentage presumptions used to play very important role when it was impossible to get conclusive medical evidence about who was the father of the child. Blood group evidence ruled out parentage – it had an exclusionary function as it couldn’t positively confirm parentage. presumption of parentage - 5 rebuttable presumptions child born during a marriage or within 44 weeks of separation or death of husband (69P), child born of a de facto relationship - note time limits beginning not earlier than 44 weeks not later than 20 weeks before birth (69Q), birth registration (69R), court finding (69S), acknowledgment of paternity (69T) [*declarations: s 69VA] rebuttal of presumptions: see s 69U (civil standard) s69P(3) if after separation resume cohabitation if within 3 months cohabitation child born within 44 weeks
s 69V (court may require a party to give evidence) s 69VA (parentage declarations) as well as after hearing evidence determining issue parentage for purpose of proceedings court can issue a declaration parentage for purposes of all laws Commonwealth 69W (court request) - orders parentage procedure can be own initiative or application of a party or ICL s 69X (types of orders) – to enable testing to be carried out or made more effective order person to submit, provide information medical/family history, costs of procedure, report note Regulations
s 69Y (adults) – not liable to penalty if contravene order but court can draw inference s 69Z (children) – mustn’t be carried out without consent of parent or guardian, person with parental responsibility Also note ss 69ZA-ZD 69ZA no liability if parents consents 69ZB regs re carrying out reports and testing procedures 69ZC report made in accordance with the regs may be received into evidence 69ZD parentage testing for international maintenance agreements
Russell v Russell & Mayer (1923) 129 LT 151 – physical appearance not enough G v H (1994) 181 CLR 387 (reference made to Bringinshaw v Bringinshaw (1938) 60 CLR 336)) (PP)inference TNL and CYT  Fam CA 77 (PP) – parentage must be relevant to issue in dispute Tryon & Clutterbuck No.2 (2009)
(a) Common law › parental rights: eg name of child, where child resides, administer child’s property › diminishing nature of parental rights: see Gillick (UK) and Marion (Aust) (b) state and territory powers parens patriae is latin for ‘father of the people’. It refers to the public policy power of the state to ursurp the rights of a natural parent and to act as parent for any child in need of protection Welfare orders: s 67ZC welfare power gives court power virtually equivalent to parens patriae power State Courts Origins in Chancery (Equity) In G -v- P (1977) VR 44 the court said:... in all matters relating to the custody, guardianship and welfare of all infants, whether born in or out of wedlock (at p 46). wardship ward of the court (parens patriae) ward of the state (Children and Young Persons (Care and Protection) Act 1998)
K v Minister, Youth & Community Services (NSW)  1 NSWLR 311 s 67ZC(1) (power) how wide is this power? medical/sterilisation cases referral of powers not extend to adoption and child protection/ welfare s69ZK court can’t make an order re a child under state child welfare law unless child ceases to be under that care Welfare orders: s 67ZC welfare power gives court power virtually equivalent to parens patriae power State Courts Re Alex: Hormonal treatment for gender identity dysphoria  FLC 93-175 DOCS v Y  NSWSC 644 – anorexic teenager
Parental rights not absolute only exist so far as necessary for care and protection of children Gillick v West Norfolk and Wisbech Area Health Authority  AC 112 (PP) Secretary, Dep. of Health and Community Services v JWB and SMB (Re Marion)  FLC 92-293 (PP) commonly known as Marion’s case HC adopted Gillick’s case. Re Marion (No.2)  FLC 92-448 proposed hysterectomy child severely disabled
OBJECTS meaningful relationship with both parents: s 60B(1)(a) protecting children from abuse: s 60B(1)(b) ensuring children receive adequate and proper parenting s 60B(1)(c) ensuring parents fulfil their duties and meet their responsibilities: s 60B(1)(d) right to know and be cared for by both parents: s 60B(2)(a) right to regular time with parents and significant others: s 60B(2)(b) parents jointly share duties and responsibilities: s 60B(2)(c) parents should agree about future parenting: s 60B(2)(d) right to enjoy their culture: s 60B(2)(e)
s60CA best interests of the child paramount s60CC how child’s best interests are determined Parental responsibility provisions s61B parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.parental responsibilitychildparents children s 61C both parents have parental responsibility subject to court orders Parenting orders and parental responsibility s61DA presumption of equal shared parental responsibility and parenting orders See also s4 FLA definition of major issues
"major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:child (a) the child's education (both current and future); andchildeducation (b) the child's religious and cultural upbringing; andchild (c) the child's health; andchild (d) the child's name; andchild (e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.child parent To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long ‑ term issue in relation to the child. However, the decision will involve a major long ‑ term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.parentchild parentchildparent
B and B: Family Law Reform Act 1995  FLC 92-755 H and H  FamCA 27 (PP) – example of presumption not applying Chappell and Chappell  FamCAFC 143 (Parental responsibility)
Chapman and Palmer  FLC 90-510 court has to balance factors for and against name change welfare of child paramount. Set out 6 factors. Skrabl and Leach  FLC 92-016 Mahoney and McKenzie  FLC 92-408 Fooks and McCarthy  FLC 92-450 Flanagan and Handcock  FLC 93-074; Handcock and Flanagan  FLC 92-102 Koldsjor & Addington  FamCAFC 21 See also Maluka & Maluka  Fam CA 647 paras 358 to 269 re change of name.
Note from the extracts the following points from research: most children want to spent time with both parents quality of time more important than amount of time negative impact of ongoing conflict (which does not always end with separation) notion of authoritative parenting Note especially the following extracts: [21.95] Developing Beneficial Parenting Plan Models for Children Following Divorce [21.110] Amato and Gilbreth Nonresident fathers and children’s well-being [21.125] Smyth and Chisholm Exploring Options Parental care following separation a primer for family law specialists [21.135] McIntosh and Chisholm Cautionary Notes on Shared Care of Children in Conflicted Parental Separation
(a) Family Law Amendment (Shared Parental Responsibility) Act [22.15] Chisholm Making it Work: 2006 Act (b)the main statutory provisions and their use Objects and principles play significant role in interpretation of the law S60B objects section. What implications does maximum extent (re meaningful relationship) have for amount of time. how is involvement different from time? For a useful flowchart setting out the parenting sections see page 65 of the Fehlberg and Behrens text available on the supplementary materials website. Who may apply? (s 65C applicant) parent, child, grandparent, concerned person plus connection to Australia s 69E (jurisdiction) child present in Australia or Australian citizen or ordinarily resident or a parent etc
Court’s power s 65D – court may make such order as thinks proper subject to s61DA and 65DAB s 65D(2)) court’s power is subject to presumption of equal shared parental responsibility s 65DAA court to consider equal time/substantial time parenting s 65DAB court must also consider the latest parenting plan (if applicable) s 65DAC effect of parenting order on shared parental responsibility (ie consulting with each other) s 65DAE no need to consult re non-major long term issues. See s4 for definition of major issues High Court emphasized in CDJ and VAJ  that people may reasonably differ on where best interests of child lie. These are values not facts.
Court’s power s65D – court may make sure order as thinks proper subject to s61DA and 65DAB s65D(2) court’s power subject to presumption of equal shared parental responsibility 65DAA court to consider equal or substantial time s65AB court to consider latest parenting plan (if applicable) s65DAC effect of parenting order on shared parental responsibilty eg consulting with each other S65AE no need to consult re non-major issues
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) (f) capacity to provide for child’s needs (g)maturity, sex and background/culture (h)ATSI children (right to enjoy culture) – also note s 60CC(6) (i)parental attitudes (j)family violence – also note 60CG (risk factor) (k)family violence order – also note s 60CF (l)further proceedings (m)any relevant fact or circumstance
New presumption (starting point) if making parenting orders: s 61DA 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) (if making parenting orders – ‘trigger’ effect) Court must consider child spending equal time or substantial time with each parent: s 65DAA Equal time: s 65DAA(1) (a) is it in the best interests? (b) is it reasonably practical? – s 65DAA(5) (c) if so, consider making the order Substantial and significant time: s 65DAA(2) (when not equal time – again best interests and practicability considered
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 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 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
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 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 Newlands v Newlands (2007) 37 Fam LR 103 Escott v Lowe  FamCA 307 – example of a trial judge working through the steps MRR v GR
Until 1990s marked reluctance by courts to allow allegations of violence by one parent against the other to become relevant in children’s matters. Eg Heidt  Jaeger  S60K court to take prompt actions re allegations child abuse or family violence Issue about capacity of courts being able to deal with these allegations quickly CW v CW  Kaye, Stubbs and Tolmie Domestic Violence and Child Contact Arrangements  Nawaqualiva v Marshall  FLC 93-296 In the Marriage of JG and BG  FLC 92-515 Patsalou and Patsalou  FLC 92-580 Maluka & Maluka  Fam CA 647 Review notes from topic 6.
2006 change from wishes to views seen as emphasizing broader based investigation from child’s perspective. Also consistent with UN Convention Rights of Child. Joannou and Joannou  FLC 91-642 ZN and YH and the Separate Representative  FLC 93-101 R and R: Children’s Wishes (2000) 25 Fam LR 712
Early cases natural parents were preferred Gronow and Gronow  FLC 90-716 Re Evelyn
In past homosexuality was something to be overcome L and L  FLC 91-353 (PP) Check list of matters to consider when a homosexual parent is seeking custody or access Doyle and Doyle  FLC 92-286 Re Patrick (2002) FLC 93-096 Re Mark: An Application Related to Parental Responsibilities  Fam CA 822 Consequences of non-recognition of the non-biological parent (note however this is progressively being addressed by Federal and NSW Governments › No rights parental leave › Can’t provide consent for medical procedures › Can’t provide child care centres & schools with valid permissions › Problems with overseas travel › Legal parent dies no automatic assumption that the child will continue to live with the co-parent
Child is at a disadvantage is functional parent dies without a will no automatic entitlements to inherit NSW was recently reformed its laws S14 of The Status of Children Act has been amended to create parentage presumption in favour of female de facto partner of birth mother. Flow on effect of this is that both mothers can have their name as parents on the birth certificate. They can apply for an amendment retrospectively by consent. S60H and s60HA also been amended in 2008 Flynn and Jasper  FMCA Fam 106 Applicant referred to as co-parent mother Some discussion about application of s60CC to non- parent See earlier comments
Difficult issues. Greater recognition in recent years with insertion of specific provisions drawing the Court’s attention to cultural issues B and R and the Separate Representative  FLC 92-636 (PP) Re CP  FLC 92-741(PP)
Court required take separation from other children into account: s60CC(3)(d)(ii) Separation is rare. As always in parenting matters best interests child paramount. Children’s views important here (i) status quo Reference to status quo is usually referring to situation which has become settled after separation. S60CC(3(d) requires court to consider effect of any changes
Non-parents can apply for parenting orders. Often contest grandparents, other relatives, step-parents Rice and Miller  FLC 92-415 parenthood important but not a preference for natural parent. Must determine case on own facts Surrogacy arrangements present new situation
Historically was an issue Matrimonial conduct not related to welfare of child not relevant Conduct that impacts on children is One form conduct will look at in more detail is kidnapping
Courts have found this difficult to deal with- cases where parties are of different religions or where only one is religious. The believer is likely to argue that being brought up in that faith is necessary for the child’s spiritual welfare Firth and Firth  FLC 91-971 Paisio and Paisio  FLC 90-659 Plows and Plows  FLC 90-712 Elspeth & Peter  FamCA 1385 esp paras 79, 298- 299, 235 – 266, 297 Peter & Elspeth  FamCA 551 paras 1 to 9 set out background to litigation, 93 summarises Benjamin J’s findings from the 2006 case, paras 143 to 156 re meaningful relationship, paras 160, 189, 197, 200 These cases concern the Exclusive Brethren. They highlight the dilemma the court faces in cases like this.
Court may order appointment of independent children’s lawyer on its on own motion or application of party Can’t require a child to express a view s68LA role of ICL Re K  FLC 92-461 (PP) criteria for appointment? Guidelines set out in this case. Not exhaustive.
› Allegations child abuse › Intractable conflict › Child apparently alienated from 1 or both parents › Issues of cultural or religious differences affecting child › Sexual preference either or both parents of other person having significant contact likely to impact on child’s welfare › Conduct of either or both parents or other person having significant contact with child is alleged to be anti-social to extent seriously impinges on child’s welfare
› Issues significant medical, psychiatric or psychological illness or personality disorders re parent or other significant person › On material filed by parents neither seem suitable custodians › Child mature years expressing strong views which would change long term custodial arrangement or deny a parent access › Issues significant medical, psychiatric or psychological illness or personality disorders re parent or other significant person › On material filed by parents neither seem suitable custodians › Child mature years expressing strong views which would change long term custodial arrangement or deny a parent access
Where one party proposes child be permanently removed from jurisdiction Proposal to separate siblings None of the parties are represented Application welfare jurisdiction re medical treatment and children’s interests not adequately represented by 1 of the parties Brear v Corcoles-Alfaro  FLC 92-768 (PP)
Objects refer to desirability of parents reaching agreement Parents can give effect to agreements by Entering into consent orders. These are lodged with the court and approved by a registrar, court may have regard to best interests Making a parenting plan
contravention and enforcement (for contempt): Stage 3 - ss 70NJ-70NR three stage compliance regime: new Division 13A Stage 1: Explanation: to improve communication and educate parents Stage 2: Education: remedial measures to improve parenting (education programs) Stage 3: Enforcement: last resort … traditional measures/penalties for enforcement and dealing with inexcusable intentional breaches (imprisonment, fine, bond, CSO)
Unacceptable risk test M v M (1988) 166 CLR 69 (reference made to Briginshaw v Briginshaw (1938) 60 CLR 336)) (PP) Re David  FLC 92-776 (PP) [23.45] A v A 
Referred to Fogarty’s article on unacceptable risk. He summarized principles emerging from M and M decisive issue is and always remains best interest of child nature of risk best expressed by term unacceptable risk where past abuse alleged usually neither necessary not desirable to reach definitive conclusion on that issue onus proof civil standard its now more appropriate to refer to s140 Evidence Act rather than Briginshaw
B and B: Family Law Reform Act 1995  FLC 92-755 A and A: Relocation Approach  FLC 93-035 set out principles to be applied in relocation cases. 1. Best interests child paramount but not sole consideration. 2. Parent wanting to move can’t be required to show compelling reasons. 3. Court must evaluate parties’ competing proposed. 4. Can’t separate relocation from residence. 5. Evaluate referring to s68F U v U  FLC 93-112 not bound by parties’ proposals, consider whether other parent could relocate M v S (2006) 37 Fam LR 32 post 2006 didn’t introduce presumption against relocation Sampson and Hartnett (No. 10)  Fam CA 1367, (2007) FLC 93-350, (2008) 38 Fam LR 315 new dimension considered whether can compel a parent to move. No doubt can order a parent not to relocate. McCall and Clark  FamCAFC 92 international relocation case. Good discussion re meaningful relationship and factors to consider in a relocation case
Location orders – s67J – a location order is a requirement to provide the registrar of the court with information about the whereabouts of a child Commonwealth information orders (s67J(1)(b) may be directed to Commonwealth agencies such as Centrelink or the Child Support Agency. In deciding whether to make a location or information order the best interests of the child is paramount. Recovery order: s67Q to s67X – requires return of child Airport watch list orders – Australian Federal Police
Laing v Central Authority  FLC 92-849 P v Cth Central Authority; JLM v Director-General, NSW Dep. of Community Services  FLC 93-081 (PP) De L v Director General, NSW Dep. of Community Services  FLC 92-706;  FLC 92-744 (PP) MW v Director- General, Department of Community Services  HCA 12 (PP) s 65Y/65Z offence also note ss 65ZA-65BB in relation to obligations of owners of aircraft etc Hague Child Abduction Convention (1980) s 111B FLA (note FLAA 2000 changes) Family Law (Child Abduction Convention) Regulations what about non-Hague cases? - appropriate forum test or best interests test?
Court has been cautious about allowing parties to reopen proceedings Well settled principle Rice and Asplund formulated to promote best interests child. SPS and PLS (2008) Fam LR 295 (PP)