1. Family Law Topic 51 FAMILY LAW TOPIC 5: PARENTING DISPUTES

2. CAUTION  This PPT does NOT reflect the amendments which came into effect on 7 June 2012.  These amendments are contained in the student notes for this topic Family Law Topic 52

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

4. Family Law Topic 54 (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).

5. Family Law Topic 55 (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

6. Family Law Topic 56 The United Nations Convention on the Rights of the Child (UNCROC)  1924 Geneva Declaration  1959 UN Declaration  1979 International Year of the Child  1989 Convention  1990 Australia ratifies

7. Family Law Topic 57

8. 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)

9. Family Law Topic 59 (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)**

10. Family Law Topic 510 (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)**

11. Family Law Topic 511 (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

12. Family Law Topic 512 (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’

13. Family Law Topic 513 (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)

14. Family Law Topic 514 (d)Change of name issue  Parental responsibility  Remedy – injunction s 68B  Consent?  Welfare of child?

15. Family Law Topic 515 (a)Legitimacy  filius nullius  Marriage Act 1961 see ss 89, 91, 92 (b)Equality of Status Legislation  Status of Children Act 1996 (2)PARENTAGE OF CHILDREN

16. Family Law Topic 516 (2)PARENTAGE OF CHILDREN (c)Establishing the Parentage of Children  mater sempter certa est pater incertus est  parentage presumptions  marriage: s 69P  defacto relationship: s 69Q  birth certificate: s 69R  court findings: s 69S  acknowledgment: s 69T  presumptions are rebuttable see s 69U (civil standard)

17. Family Law Topic 517 (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? s 69W (court request) s 69X (types of orders) and Regulations (v)failure to comply s 69Y (adults)/s 69Z (children) Also note ss 69ZA-ZD

18. Family Law Topic 518 (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.

19. Family Law Topic 519 (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

20. Family Law Topic 520 (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) (3)PARENTING ORDERS

21. Family Law Topic 521 (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)) (3)PARENTING ORDERS

22. Family Law Topic 522 (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 (3)PARENTING ORDERS

23. Family Law Topic 523 (b)Who may apply?  s 65C (applicant)  parent  child  grandparent  ‘concerned person’  s 69E (jurisdiction)  connection to Australia (3)PARENTING ORDERS

24. Family Law Topic 524 (3)PARENTINGORDERS (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)

25. Family Law Topic 525 (3)PARENTINGORDERS (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

26. Family Law Topic 526 (3)PARENTING ORDERS (d) Best Interests of Child are Paramount  So what does ‘best interests’ (paramountcy principle) actually mean?  (old) s 65E (new) ss 60CA and 65AA** (overriding consideration - ‘must regard’) -(old) s 68F(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**

27. Family Law Topic 527  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 (4)WELFARE ORDERS (5)LOCATION AND RECOVERY OF CHILDREN

28. Family Law Topic 528  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) (6)BEST INTERESTS PRINCIPLES

29. Family Law Topic 529  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 (6)BEST INTERESTS PRINCIPLES

30. Family Law Topic 530  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) (6)BEST INTERESTS PRINCIPLES

31. Family Law Topic 531  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 (6)BEST INTERESTS PRINCIPLES

32. Family Law Topic 532 (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)

33. Family Law Topic 533 (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

34. Family Law Topic 534 (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]

35. Family Law Topic 535 (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

36. Family Law Topic 536 (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]

37. Family Law Topic 537 (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].

38. Family Law Topic 538 (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**

39. Family Law Topic 539 (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?

40. Family Law Topic 540 (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

41. Family Law Topic 541 (6)BEST INTERESTS PRINCIPLES (d)Relocation & Contact  see (old) s 68F(2)(d)  (new) s60CC(3)(e)  what does ‘contact’ mean?  Part VII object: s 60B(2)(b)  s 60D definition – s 64B(4)  presumption in favour?  unacceptable risk?  presumption against non-parents?

42. Family Law Topic 542 (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 degree and quality of existing relationship with residence parent and contact parent reason for relocation reason for relocation distance and permanency of relocation distance and permanency of relocation effects on the child of relocation effects on the child of relocation

43. Family Law Topic 543 (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]

44. Family Law Topic 544 (6)BEST INTERESTS PRINCIPLES (e)Racial, Cultural and Religious Issues  see (old) s 68F(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’

45. Family Law Topic 545 (6)BEST INTERESTS PRINCIPLES (f)Sexual orientation of parents  see (old) s 68F(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”)

46. Family Law Topic 546 (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/Briginshaw standard applies): Re W (2004)  false accusations: Re David (1997)  also see (old) s 68F(2)(i) and s 68F(2)(j)  (new) s 60CC(3)(j)+(k)  also see Division 11 (in particular s 68T)

47. Family Law Topic 547  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 (4)WELFARE ORDERS

48. Family Law Topic 548 (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 65P FLA  Warrant may be issued: s 65Q FLA  Parental Compliance Regime – Stage 2 ‘education course’?  Stage 3 ‘penalties’ include imprisonment, fine, GBB, sentencing alternative: Pt VII Div 13A (5)LOCATION AND RECOVERY OF CHILDREN

49. Family Law Topic 549 (a)Intra/Interstate Child Abduction (i)Location Order (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) (5)LOCATION AND RECOVERY OF CHILDREN

50. Family Law Topic 550 (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 111B FLA (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 )?

51. Family Law Topic 551  see s 68L (independent children’s lawyer)  applicant: s 68L(3)  order child be available: s 68M  who represents? Legal Aid? s 116C  who pays?  note s 68L(2A) strict test for Hague matters  role of separate rep cross examine parties cross examine parties evidence in chief evidence in chief evidence of wishes evidence of wishes  (new) s 68LA  also see 2003 ‘Guidelines’/Law Soc Rep’n Principles (7)SEPARATE REPRESENTATION OF CHILDREN (ICL)

52. Family Law Topic 552 criteria for appointment of ICL? see FC guidelines in Re K (1994)  Abuse  Intractable conflict  Child-parent alienation  Cultural or religious differences  Sexual preferences  Party’s conduct  Illness issues (7)SEPARATE REPRESENTATION OF CHILDREN

53. Family Law Topic 553 Re K (1994) (con’t)  Neither parent seems a suitable custodian  Mature child/strong views – effect changes long standing custody or access denial  Relocation (& consequential access problem)  Proposed to separate siblings  Cases where neither party legally represented  Welfare jurisdiction and a medical procedure  In circumstances of case it is appropriate (but failure to do so should not lead to appeal) (7)SEPARATE REPRESENTATION OF CHILDREN

54. Family Law Topic 554  see s 60B(2)(d)  defined: s 63C(1)  must be explained: s 63DA  may be registered (to Jan 2004 ONLY): s 63E  may include child support/maintenance: ss 63CAA, 63G  restricts courts powers to subsequently act: s 63H  Note (new) s 64D: parenting orders subject to later parenting plans  Note (new) s 65DAB: court is to have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the child. (8)PARENTING PLANS

55. Family Law Topic 555 Three stage compliance regime: Division 13A (FLAA 2000)  Stage 1: Explanation: to improve communication and educate parents  Stage 2: Education: remedial measures to improve parenting (education programs) (9)PARENTING COMPLIANCE REGIME

56. Family Law Topic 556 Three stage compliance regime: Division 13A (FLAA 2000) (con’t)  Stage 3: Enforcement: last resort … traditional measures and penalties for enforcement and dealing with inexcusable intentional breaches (fine, imprisonment, bond, CSO) (9)PARENTING COMPLIANCE REGIME