7. Children and the Family Law Act 2011 Student Notes

7. Children and the Family Law Act 2011 Student notes

Harland, Chapters 7 – 9, 11, 17.20

Parkinson, Chapters 20 – 23

Monahan/Young, Chapters 6 – 7

Monahan/Young, Children and the Law, Chapter 16

Issues:

In this topic we consider the broad provisions of Part VII of the Family Law Act 1975 (Cth) in relation to children from marriage and non-marriage relationships. In doing so, we consider the concepts of children’s rights (in particular the UN Convention on the Rights of the Child), parental responsibility and parental powers and ability of a court exercising jurisdiction under the Act to adjust aspects of parental responsibility.

NB: the Family law Act (Shared Parental Responsibility) Act was introduced in July 2006. It introduced major reforms to Part VII of the Family Law Act (dealing with children) in particular. For this reason you need to be careful when reading your texts as many were written before the changes. Older cases are still relevant but it is important that you understand the new amendments. You also need to use the correct terminology in the exam.

Desired Outcomes:

An appreciation and understanding of the concept of parental responsibility and the ability of a court (exercising jurisdiction under the Act) to make parenting orders, and, where appropriate, welfare orders, location and recovery orders. Overall, an understanding of the best interests of the child principle which is the paramount concern (and the statutory factors to be considered).

(1) Parenthood

(a) establishing the parentage of children

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

§ Presumptions of parentage

§ 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.

§ - 5 rebuttable presumptions of parentage

§ 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

(b) parentage evidence

§ 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 ICLs 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

failure to comply

§ 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

McK and Kv O (2001) FLC 93-089

G v H (1994) 181 CLR 387 (reference made to Bringinshaw v Bringinshaw (1938) 60 CLR 336)) (PP) )- drawing inferences

TNL and CYT [2005] Fam CA 77 (PP) - parentage must be relevant to an issue in dispute

Tryon v Cluterback [2009] Fam CAFC 176

(2) Parental responsibility

(a) Nature and scope

- 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.

- s 61C both parents have parental responsibility subject to court orders

s 4 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:

(a) the child's education (both current and future); and

(b) the child's religious and cultural upbringing; and

(d) the child's name; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a 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 longterm issue in relation to the child. However, the decision will involve a major longterm 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.

S61DB If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

long term vs short term parental responsibility issues

extent of parental responsibility

· 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 [1986] AC 112 (PP)

Secretary, Dep. of Health and Community Services v JWB and SMB (Re Marion) [1992] FLC 92-293 (PP) commonly known as Marion’s case HC adopted Gillick’s case.

(b) Welfare orders: s 67ZC

welfare power gives court power virtually equivalent to parens patriae power State Courts

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

DOCS v Y [1999] NSWSC 644 – anorexic teenager

Re Marion (No.2) [1994] FLC 92-448 proposed hysterectomy child severely disabled

Re Alex: Hormonal treatment for gender identity dysphoria [2004] FLC 93-175

(c ) sharing of parental responsibility

S 61DAC effect of parenting order that provides for shared parental responsibility

Parental responsibility can be shared among two or more persons

Requires consultation

(d ) presumption about equal shared parental responsibility

FAMILY LAW ACT 1975 - SECT 61DA

Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

- s61DA presumption of equal shared parental responsibility, if the presumption applies court then has to look at the considerations in s 65DAA

- the presumption does not apply where there are reasonable grounds to believe a parent or person living with the child has engaged in abuse or family violence

- the presumption can be rebutted if it is not in the child’s best interests

H and H [2007] Fam CA 27 (PP) good example of the presumption not applies

Chappell and Chappell [2008] Fam CAFC 143 (Parental responsibility)

(3) Artificial conception

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.

STATUS OF CHILDREN ACT 1996 - SECT 14

Presumptions of parentage arising out of use of fertilisation procedures

14 Presumptions of parentage arising out of use of fertilisation procedures

(1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:

(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, and

(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:

(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.

(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).

(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.

(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.

(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, and

(b) a reference (however expressed) to the husband or wife of a person:

(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, and

(ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually 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 .

SECT 60H

Children born as a result of artificial conception procedures

(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 defacto partner of, another person (the other intended parent ); and

(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; or