Case summaries week 4-6 PDF

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Summary

Facts to the cases are given where the textbook gives them or where I could find them on the internet, where it does not and I cannot find them only the ratio as given the textbook is included in this summary Process at a glance Goode v Goode Facts The parties reached an agreement and the father com...

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Facts to the cases are given where the textbook gives them or where I could find them on the internet, where it does not and I cannot find them only the ratio as given by the textbook is included in this summary

Process at a glance Goode v Goode Facts The parties reached an agreement and the father commenced spending time with the children on each alternate weekend. The mother removed the children from the father and made it difficult for him to have contact, other than the contact she said he could have. The judge inferred from a letter written by the father to the mother that when he left the home and the marriage, he was not concerned about the adequacy of the care the mother was providing the children. Issue Ratio 1.) The starting point for all parenting applications is the consideration of equal and shared parenting responsibility 61DA 2.) If ESPR is ordered this automatically triggers 65DAA (The consideration of qual or substantial and significant parenting time) even in cases where it is not applied the court can still order substantial and signif time or equal time 3.) Considering making an order for substantial and significant time or equal time  means first completing the twin tests of reasonable practicability. 4.) When the court finds neither equal nor substantial and significant time appropriate the child’s best interests as ascertained by a consideration of the factors in 60B and 60cc 5.) This process is the same whether final or interim orders 6.) The children’s best interest are the overriding consideration 7.) Findings should be made under 60cc before turning to other provisions Goode v Goode indicates that the courts starting point should be the presumption of equal shared parental responsibility.

8.) Step 1 how does the court determine what is in the child’s best interest? Cases regarding the primary and secondary considerations in 60cc(2)primary and 60cc(3) secondary Meaningful relationship 60cc(2)(A) ‘meaningful relationship’ McCall v Clark The court’s focus should be on the child having a meaningful or significant relationship with parents. As usually children will benefit from having a signif relationship with both parents.   

Three possible constructions of 60CC(2) Present relationship approach (relevant but not favored) Presumption approach

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Prospective approach (favoured)  the court should consider and weigh evidence at the date of the hearing and determine how if it is in the child’s best interest orders can be famed to ensure child has relationship with both parents

G&G Prospective one which requires the court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to the child Marzoski v Albright Following on from McCall the court said that Meaningful in this context meant ‘significant’ which is important or of consequence PvP Meaningful= having a positive impact on the lives of the children. Pottes v Bimms Non parents do not attract the first primary consideration under 60cc(2) that is “to have a meaningful relationship with the child’ Marsden v Winch The legislation does not operate so that the primary considerations in 60cc(2) invariably outweigh the conditional considerations in 60cc(3) all considerations must be taken into account. Mulvaney v Layne Additional factors can outweigh the primary consideration of meaningful relationship (facts below at different step in the process)

60cc(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

M&M In determining what constitutes an ‘unacceptable risk of family violence’ 

Existence and magnitude of the risk must be taken into account and the court must balance the risk the risk of violence to a person against the possibility of the child benefiting from parental contact

A&A The Court can examine allegation of family violence or abuse and decide whether it ‘amounts to an unacceptable risk’ but it is not court’s job to decide truth of allegation Marriage of patsalou The making of derogatory remarks and the infliction of violence by one party on the other are relative matters to be considered and reflect poorly on a party’s ability to act as a positive role model. JG and BG Facts involved custody proceedings in respect of the two children of the marriage in the trial proceedings allegations had been made about the husband being physically violent and verbally abusive.

Blanch v Blanch The court emphasised the importance of taking ongoing violence into account and the potential damage that could be caused to the children by exposing them to a violent role model. Other forms of violence may be relevant to the welfare of the children such as violence occurring between house hold members even when it happens away from the children as it may cause the children harm/distress especially where it affects the parenting of the custodial parents.

Additional considerations s60CC(3) 

Views of the child

Bondelmonte & Bondelmonte Marriage of joannnou Facts Involved children 4,5,8 and 4-----the judge said that evidence of the wishes of children at those ages were not particularly relevant and he was not going to take notice of their views Ruled It was held that evidence of the wishes of the children this age would not be irrelevant, but may or may not be helpful depending on depending on factors which could have become clear if the councillor had given a report on the children in relation to those matters. Ratio The court is required to have regard to the expressed wishes of the child regardless of age Harrison and Woolard Facts: An appeal was allowed on the grounds that the trial judge had given insufficient weight to the wishes of the children in the case aged 7 and 8 Ratio The court held that the wishes of the children are proper, and that realistic weight should be attached to any wishes expressed by children. The court will attach varying weight to the child’s stated wishes their basis and the maturity of the child including the degree of appreciation by the child of factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. A child’s wishes must not only be considered but should be show in the reasons of the judge, if the judge decided to reject the wishes clear and cogent reasons for doing so must be shown. Must not regard the wishes in a token or dismissive manner. 

Look at the strength and duration of the views expressed

RvR The views of children should be shown significant consideration and good reasons should be shown for not abiding by child’s wishes. ZN v YH

Three children aged 14, 12, 9 had been living with their mother who wished to relocate them to the US as she married an American, judge placed significant weight to the views of the children as to their preferred place of Tasmania in deciding to not allow the mother to relocate them Roda number 2 Court ruled in favour of 17 year old boy living overseas and finishing schooling there against the father’s wishes, finances were paid by mother and a scholarship. B&B A couple who had two daughters 12 and 10 broke up, the mother met another man who lived and owned a business in Bendigo and she wanted to move to Bendigo to be with him The best interest’s principle will override a child’s wishes Ratio The views of older children are likely to be given more weight Goode v Goode indicates that the status quo doesn’t prevail and the best interests principle is give paramountcy, however the status quo is still taken into account (sort of ) under 60cc(3)

Additional considerations continued 60cc(3)(d) requires the court to consider the likely affect of a change in circumstances on the child. ‘Status quo’/relationships with others that may be disturbed by orders Separation of siblings Marriage of Maday The weight to be given to the status quo in particular case depends on the circumstances Marriage of Raby Several factors may be used to judge the significance of the status quo in any given case    

Age of child Length of the status quo period Quality Nature of the child adult relationships developed in it.

change might actually be seen as warranted if the current situation is not promoting rel’ship with both parents.

Jurrs (From slides couldn’t find it in the textbook) Gravity of disturbance to status quo. Loss of friends, school, sporting ties etc can be important F &N The weight to be given will depend on each case. Barnet v Barnet Cases which the welfare of the children require that they be divided must be very rare Rare= 

Children detest each other

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Wide age gaps between the children.

Cattanatch & Leavens Two children a boy and his younger sister lived with their mother since the parents separated the mother remarried and was proposing to move to the US to live with her new husband and children, would have greatly limited the contact between the father and the children. Although there was a strong bond between the children the court recognised their need to be separated as the boy was strongly attached to his father and the girl his mother. Fitzgeral and Robinson Gave effect to the wishes of a girl and a boy of disparate ages.  

Although it is trite law that that the separation of children in a family is trite law it is not ab inflexible rule and it is guided by considerations of what is in the child’s best interest. The wishes of the children themselves will often be the determinative factor of weighing up whether the children should be separated

Cassidy v Sibly: Mother went to Canada with children, would not return and the father was not allowed to live in Canada he used the hague convention (kidnapping) to procure the oldest child from the mother Court ruled it was best for the boy to remain with his father, as he and his siblings had already been separated for a year when she commenced proceedings to get the boy back. Marriage of Hayman There is a difference between making a decision that could divide siblings/other parties and one that could continue separation or rule that the parties should be unitied, when the latter is the case..  

Change of environment and Change of presently existing relationships

Are matters which should be considered. Marriage of heidt There has been cases where the courts have ruled that separated parties should be reunited. H&H Judge awarded custody of all the children to the mother even though the 11 year old boy had been living with the father for and moved to his home for weeks before the trial as the judge noted that it would be detrimental to the relationship of the child with his siblings to continue the separation, as wells it would be detrimental to his siblings.  

The fact that siblings fight from time to time is not a proper reason for separating them There is importance in maintaining sibling relationships especially in the context of parents separations

JvC Custody of a 10-year-old boy was given to custody of a 10-year-old boy was given to the English foster parents with whom the child had been residing for most of his life, in preference to his Spanish parents, on the grounds that the child was well settled and that a change of custody was not in the child’s best interests. Even so, claims of parents would normally prevail unless that was shown not to be in the child’s best interests: Ratio

Distinct reluctance of courts to defeat the claims of natural parents Powell v Anderson Custody of a three-and-a-half-year-old child was given to the natural parents, even though the child had lived most of his life with foster parents with whom he had been placed following a family bereavement and with whom a strong emotional bond had developed. Hutley JA stated the matter in the following terms: court was presented with the competing claims of the parents of a young child who wished to have him returned to the family after having been in the de facto control of a friend of the family and the claim of the friend, based merely upon the emotional ties which had developed. To this there can be only* one answer. The claims of the parents cannot be denied. Any other doctrine would mean that where parents are compelled to place children with others because of misfortune or ill health, they are in peril of losing their children altogether to strangers. Ratio Court usually rules in favour of natural parents? Rice v Miller Indicates that the judges in the previous cases were misstating family law. Parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption or preferential position in favour of the natural parent from which the court commences its decision-making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved. Ratio There is no presumption in favour of natural parents Davis v Davis Dispute that involved a range of factors. The mother of the child/ was Aboriginal; C had been raised since birth by her paternal grandmother; and the mother wished to relocate the child away from where the father and the paternal grandmother lived. Young J raised squarely the question of the impact of the new primary consideration and other changes made in 2006 where a third party is involved. His Honour considered a number of unreported decisions since the 2006 reforms – including one by the Full Court post-2006, but not subject to the new provisions — Ratio While the Full Court had not resolved interpretation of the provisions, the law had not changed with the amendments. 

There is no presumption in favour of biological parents though in many situations the case of biological parents) will be stronger.

Even if the court eschews any presumptive approach in favour of biological parents as primary carers, this is not to deny that, in a practical sense, parents will continue to have a considerable advantage, particularly where they have maintained a relationship with the child. DvF   

Parenthood may be of little significance where the parent has had no relationship with the child. Where the parent poses a real risk to the child’s welfare Or in cases where other factors overwhelmingly outweigh it

but it may be very significant

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In a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with s proper interest in caring for the child

Aldridge v Keaton It is not parenthood that contributes to the best interests of the children, but parenting. Carlson v Bowden Murphy J placed the four-year-old boy L, in the care of his paternal grandmother and her partner in circumstances where both parents had a history of drug dependency and criminal convictions. Facts The mother was living with a man with a significant criminal history as well as past drug dependency, and adverse findings were made about his behaviour. The mother and her partner had another young child. The father acknowledged he was not in a position to parent however, the mother sought that L live equally with her and the paternal grandparent. the mother was primary carer Ruled Child needed stability and would therefore be better off with the parenting of his grandparents as the parenting of the mother and her partner was ‘seriously deficient’ Re lynette The mother died when the child was 12 and left her with her carer, the father wanted the daughter, but the court ruled against this for a number of reasons    

She had not seen him since she was 4 He initially denied paternity Claimed she was abused and asked she have a vaginal exam The child did not want anything to do with her father

The court ordered he was to have no contact. Ratio Being the biological parent won’t on its own create a presumption of contact. Re patrick The judge found in favour of the biological father who was a sperm donor having contact with his child Patrick even though the mother was in a same sex relationship, they went into hiding, but the judge still made orders for F the sperm donor father to spend time with Patrick. Love and Lundy The judge did not order contact for Love after she broke up with Lundy, as he said the attitude of Lundy’s family was relevant and they did not want Love to have contact with the child.

Presumption of ESPR Potts v Bimms The presumption of ESPR does not apply for 3rd parties, but as above additional factors in 60cc(3) support the recognition of third parties Nawaqualia & Marshall

In order to ascertain what is in the child’s best interests finding of facts under 60cc(3) should be made in order to determine what is in the child’s best interests under 60cc(2) for example the benefit to the child of having a meaningful relationship with both parents cannot be established w/o first making findings as to the nature of the relationship between the parent and the child. The same is true in regard to looking at the history of family violence. There is a presumption that ESPR is in a child’s best interest Boyce v Boyce If the presumption of ESPR does not apply then there is no requirement to consider whether it is rebutted on the evidence. Jollie and Dysart The power to make parenting orders is conditional on the presumption being applied, not just referred to or considered (that is the presumption of ESPR) UvU The court can make an order for ESPR regardless of the orders actually sort by the parties Pavli and Beffa Facts: The mother and father agreed to ESPR parenting orders on the condition that the father was to consult the mother about all decisions and she was to have the final say, judge ruled against this, as this was not actually ESPR, as the parties did not have an equal say, in regard to major and long term issues. Ratio ESPR must include all major and long-term issues Taylor and Barker Facts The mother wanted to relocate the child from Canberra to North Queensland so that the she could live with the father of her second child whom she wished to marry. Issue, should the mother be able to relocate?/ did the judge apply 60cc properly even though he didn’t consider the twin tests of reasonable practicability of the parents locations and equal/ substantial and significant time? Ruling: The mother was allowed to relocate to North QLD Ratio: The court is to make findings in 60cc so far as they are relevant to in a particular case before attempting to apply any other provision in part VII, or 65DAA or 61DA, but it is not mandatory to follow that order as longs as all of the factors are considered. AMS and AIF 1999 Facts- The parents were living in the NT when the child was born on 2 March 1990. In February 1994, they separated. After a brief visit to Perth, they returned to the Northern Territory. The mother and the child lived in Darwin while the father lived at a mining site 160 kilometres away. In April 1994, the parents agreed to return to Perth at the end of the year. Until the father returned to Perth in October 1994, he continued to see the child, making the 320 kilometre round trip on most weekends to do so. Regular contact between the father and the child resumed after the mother returned to Perth in December of that year. Towards the end of 1995, the mother told the father told the father that she had decided to return to Darwin during the following January. In evidence, the mother said that she had made up her mind to return to Darwin "independent of her acceptance into Murdoch University because she wanted to return to Darwin".

Issue should the mother be able to relocate? Ruling The custodial parent and particularly one with sole guardianship of a child should be free to order his or her own...