Topic 5: Parenting Disputes

TOPIC 5: PARENTING DISPUTES

5. Children and the Family Law Act 1975

Monahan/Young, Chapters 6-7

Monahan/Young, Children and the Law, Chapter 16

Dickey, Chapters 14 – 23

Parkinson and Behrens, Part E Chapters 19 – 23

Cases marked with an * are particularly significant

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.

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.

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) PARENTAL POWERS AND RESPONSIBILITIES

(a) Common Law

· guardianship and custody

· long term vs short term

· parental rights: eg name of child, where child resides, administer child’s property

· diminishing nature of parental rights: see Gillick (UK) and Marion (Aust)

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).

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

(b) State and Territory Laws

(i) parens patriae jurisdiction (of NSW Supreme Court)

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).

(ii) 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 [1982] 1 NSWLR 311 Parens Patriae role always had power to interfere with guardians to protect welfare of wards

DoCS v Y [1999] NSWSC 644 parens patrie

Note s67Z of the Family Law Act

(c) Part VII Family Law Act

UN Convention of Rights of the Child 1989 (UNCROC)

- 1924 Geneva Declaration

- 1959 UN Declaration

- 1979 International Year of the Child

- 1989 Convention

- 1990 Australia ratifies

- (UK) Children Act 1989

- Joint Select Committee 1992/Government Response 1993/Family Law Council (etc)

See p203 Monahan and Young text

Family Law Act – Historical Developments

Introduction of the 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 – determining best interests – 12 factors listed

s 68E(1); s 68F(2)

(a) wishes of child

(b) parent/child r’ship

(d) contact difficulties

(e) capacity to produce for child’s needs

(f) maturity, sex and background

(g) protection from abuse

(h) parental attitudes

(i) family violence

(j) family violence order

(k) further proceedings

(l) any relevant fact or circumstance

* B and B: Family Law Reform Act 1995 [1997] FLC 92-755

Family Law Amendment (Shared Parental Responsibility) 2006 (commenced 1 July 2006)

Object of Part VII see s 60B: children’s rights: to ensure that the best interests of the children are met by:

· 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

· s69CC 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

Part VII – Divisions

1.Objectives

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’

9.Injunctions

10.Best Interests Principles

11.Family Violence

12.Jurisdiction

13.Registering State, Territory or Overseas Orders

13A. Parenting Compliance Regime

Parental Responsibility shared (equally) by parents: see ss 60B(2)(c), 61C; and includes:

- providing a home

- having contact

- protecting and maintaining the child

- determining education and religious needs

- consenting to medical treatment

(d) Change of name issue

§ Parental responsibility

§ Remedy – injunction s 68B

§ Consent?

§ Welfare of child paramount

* Chapman and Palmer [1978] FLC 90-510 Set out 6 factors Court to consider re change of name.

Skrabl and Leach [1989] FLC 92-016

Mahoney and McKenzie [1993] FLC 92-408

Fooks and McCarthy [1993] FLC 92-450

Flanagan and Handcock [2001] FLC 93-074; Handcock and Flanagan [2002] FLC 92-102

(2) PARENTAGE OF CHILDREN

(a) Legitimacy

Common law distinguished between legitimate and illegitimate children

- filius nullius – no one is legally responsible for the child so it would fall to the parish unless someone could be made liable

- Marriage Act 1961: see ss 89 – legitimating by virtue of marriage, - 90 legitimacy certain foreign marriages 91 legitimacy certain void marriages, 92 declarations of legitimacy

(b) Equality of Status Legislation

- Status of Children Act 1996, esp. s14. Recently amended by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008

(c) Establishing the Parentage of Children

(i) Common law:

- mater sempter certa est pater incertus est - presumption paternity married woman’s child is presumed to be her husband’s

(ii) Family Law Act (Cth) (Division 7 Sub-division D):

§ 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

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.

(d) 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

(i) physical appearance?

Russell v Russell & Mayer (1923) 129 LT 151

Ah Chuck v Needham [1931] NZLR 559 277

R Jenkins; Ex parte Morrison [1949] VLR 277

(ii) blood group evidence?

- ruled out parentage

(iii) DNA ‘fingerprint’

- deoxyribonucleic acid molecule - proves parentage

(iv) court enforcement?

- s 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

(v) failure to comply

- 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

* G v H (1994) 181 CLR 387 (reference made to Bringinshaw v Bringinshaw (1938) 60 CLR 336))

(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

Re Evelyn [1998] FLC 92-807; [1998] FLC 92-817

PJ v DoCS [1999] NSWSC 340

Ganter v Whalland [2001] NSWSC 1101

Re Patrick: An Application concerning Contact [2002] FLC 93-096

Re Mark: An Application relating to Parental Responsibilities [2003] FLC 93-173

(3) PARENTING ORDERS

(a) Parenting orders: s 64B(2)

§ lives with: s 64B(2)(a)

§ (time child spends with: s 64B(2)(b);

§ child communication (with): s 64B(2)(e)

§ 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))

§ (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

Re A and B (Infants) [1897] 1 Ch. 786 paramountcy principle first used in context child proceedings

J v C [1970] AC 668

Horman and Horman [1976] FLC 90-024

Kress and Kress [1976] FLC 90-126

N and H [1982] FLC 91-267

B and B: Family Law Reform Act 1995 [1997] FLC 92-755

Nawaqualiva v Marshall [2006] FLC 93-296

* Goode v Goode [2006] FLC 93-286

* Newlands v Newlands (2007) 37 Fam LR 103

* Chappell and Chappell [2008] FamCAFC 143 (Parental responsibility)

(b) 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

- also note ss 69J – jdn courts summary jdn 69N – transfer proceedings from courts summary jdn

- child must be <18 and neither married or in a de facto relationship: s 65H

- (new/s 65D(2)) court’s power is subject to presumption of equal shared parental responsibility

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

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

- (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. See s4 for definition of major issues

(d) Best Interests of child are paramount: s60CA

§ (ss 60CA and 65AA** (overriding consideration - ‘must regard’)

§ s 60CC** determining best interests (2 primary/13 additional)

- the two primary** are: meaning relationship with both parents and new to protect child from abuse etc

§ what does ‘best interests’ mean?

§ what does ‘paramount’ mean

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

(4) WELFARE ORDERS

(4) Welfare orders: s 67ZC welfare power gives court power virtually equilavent to parens patriae power State Courts

Referral of state powers to Commonwealth re children did not extend to adoption and child protection/ welfare

s69ZK court can’t make an order re a child who is under state child welfare law unless that child ceases to be under that care

- s 67ZC(1) (power)

- s 67ZC(2) (consideration) ss 60CC(2)/(3)

- s 69C (applicant)

- how wide is this power?

- medical/sterilisation cases

K v Minister, Youth & Community Services (NSW) [1982] 1 NSWLR 311

* Secretary, Dep. of Health and Community Services v JWB and SMB (Marion’s Case) [1992] FLC 92-293

Re A (a child); In the matter of the welfare of [1993] FLC 92-402

* Re Marion (No.2) [1994] FLC 92-448

P v P [1994] FLC 92-462, [1995] FLC 92-615

B and B and the Minister for Immigration and Multicultural and Indigenous Affairs [2003] FLC 93-141

Minister for Immigration & Multicultural & Indigenous Affairs and B (No.3) [2004] FLC 93-174 Re Alex: Hormonal treatment for gender identity dysphoria [2004] FLC 93-175

(5) LOCATION AND RECOVERY OF CHILDREN

(i) Location Order

- s 67J (definition)

- s 67M(3) (power)

- s 67K (applicant)

- s 67L (overriding principle)