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Applying for parenting orders
PARENTING ORDER FRAMEWORK AND DEFINITIONS AND CASE LAW...

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Applying for parenting orders Preliminaries o o o o

64B (meaning of parenting order and related terms) 64C (parenting orders may be made in favour of other persons) 65C (who may apply for a parenting order) 65D (courts power to make parenting order)

Who is a parent? 4(1) (regarding adopted child, includes adopted parent) 60H (children born from ART) 60HB (surrogacy where there is state transfer of parentage order) 60H(1) Child is conceived by ART and the mother and her spouse/de facto partner consented to the procedure, the child is the child of the woman and her spouse/de facto partner. The donor is not a ‘parent’ Expansive versus restrictive approach to s 60H o Re B v J –Outside of the child support context ‘it is not clear that the provisions of s 60H do not enlarge, rather than restrict, the categories of persons who are regarded as a child’s parents’ [as per Fogarty J] o Re Patrick – The absence of express provisions in federal law, the Act can and should be read in light of such State and Territory presumptions, thereby leaving the sperm donor, known or unknown, outside the meaning of ‘parent’ o Re Mark it is appropriate for a decision-maker to look beyond 60H and consider the “ordinary” or “natural” meaning of the word “parent”. Expansive approach “might lead to the imposition of responsibilities or entitlements on a class or classes of people who previously considered themselves immune.” “The anomalies, inconsistencies and uncertainties…” should be addressed via legislative reform [as per Brown J] o o o o

60H(1) extended to non-bio mother in lesbian de facto relationship Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 Connors & Taylor [lesbians in de-facto; child born out of ART: both are ‘parents’] o Two women lived in de-facto for 11.5 years. Women jointly planned family and each gave birth to a daughter. Child’s biological father had an on-going relationship with the children but no traditional parenting rights or responsibilities. Aldridge & Keaton –there was no de-facto relationship at the time of birth. In the present case ART was carried out while they were in a defacto relationship. Section 4 is not an exhaustive definition of ‘parent’ and [doesn’t include biological parents in definition but clearly they are parents for purposes of FLA]; 60H(1)(c) means each child is the child of the non-biological

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mother co-mother respectively and it must follow, each child’s non-biological mother is that child’s parent respectively. Donors to single women [ongoing issues] Groth & Banks [concerns a known donor and a single mother] o Cronin J applied an enlarging approach. Found state law severing parental status for sperm donors inoperative by virtue s 109 (state inconsistency). o This approach would encompass sperm donors who had no involvement with the child and even unknown donors who were later identified [mother makes contact with clinic to satisfy child’s curiosity –leaves single mothers by choice vulnerable] o Guest J’s concerns in Re Patrick (that treating a sperm donor as a parent may have unexpected consequences) are unwarranted. There is a difference between an anonymous donor and “a donor who had entered the process with the intention of fathering a particular child.” In the latter situation, the risk of unwanted responsibility is negated because such a donor intends to be a parent and this can be ascertained by the “course of conduct leading to the conception of the child”. o Cronin J’s conclusions with regard to known donors present no risk to anonymous donors because “the Act does not impose obligations on an unknown person who has donated biological material”. Mason & Mason and Amor [Mr. A and Mr. B apply for parenting orders and a declaration of parentage for Mr. A in relation to twins born in India via surrogacy] The twins entered Australia and acquired citizenship. DNA test was sufficient to establish citizenship by descent [one of the applicants] but does not determine child’s parentage for the purpose of parenting orders. o In essence there is a scheme that for the purpose of the Act or federal law, children may be deemed, presumed, or declared a child of that parent. o Effect of s 12 Status of Children Act [NSW, 1996] is that declaration of parentage will be recognized by the State. o For the purpose of 60HB(1) the s 12 Surrogacy Act [NSW] is prescribed For parenting orders the provisions under that Act apply to children born before and after the Act commenced. Presumptions of parentage dealt with by the former Act [Children’s Act] and transfer of parentage from persons presumed to be parents to persons who are not presumed to be parents is dealt by Surrogacy Act or Adoption Act. o None of the presumptions in the Children’s Act operate so as to make the applicant the children’s father. o For purpose of State law, he could only be child’s father by adoption under the State Act [Surrogacy, 2010] or declaration of parentage order made by federal court under Children’s Act. o 60H and 60HB post-date the general provisions (2008), which deal with parentage, presumptions, and declaration of parentage. No definition of the

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words ‘surrogacy’ in 60HB, it would appear a surrogacy arrangement would meet the definition of ART, but why would Parliament introduce 2 different provisions? The 2008 amendments evince an intention by Parliament that the parentage of children born as a result of ART under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. o The interpretation achieves, on a state-by-state basis a uniform scheme for the determination of parentage. The effect of this is that unless an order is made in favor of the applicant pursuant to the Surrogacy Act, the provisions of the Act do not permit this Court to make a declaration of parentage in his favor. State law will govern determination of parentage [of children born under surrogacy arrangements] and federal law will recognize that state law.

Effect of “Parent” For Child Support Child Support (Assessment) Act 1989 s 5 provides that ‘parent’ o Regarding adopted child, means adoptive parent o Regarding child born of ART, means parent under FLA s 60H Donor of sperm to a woman (whether or not she has a husband or de facto partner at the time of the ART procedure) is not liable to pay CS, but may be a ‘parent’ for FLA [Groth & Banks] o Regarding child born of surrogacy, includes parent under FLA s 60HB Intending parents w/o state transfer of parentage orders may be liable to pay Is there potential liability of surrogate mothers and donors? o DHS exemption o CS payers must be resident in Australia or a ‘reciprocating jurisdiction’

Relationship recognition State level o ACT, Tas, NSW, Qld & Vic: Relationship Registration. Acts differ. o Vic Relationships Act 2008 allows recognition of ‘domestic relationships’ (different and same sex couple) & ‘caring relationships’ (non-couples) o Key element: ‘one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other’  Need not live together Nullity o A declaration by the court that there was never a marriage between the parties (cf a divorce order, which terminates a valid marriage) o Grounds for nullity: MA s 23B o Marriage includes a void marriage so Act still applies to determine financial disputes under s 4(1) of the FLA [Kreet & Sampir]

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Divorce o One ground: irretrievable breakdown of marriage 48(1) o Established if parties have lived separately for at least 12 months immediately preceding application (FLA s 48(2)) o Can be separated under one roof (FLA s 49(2)) o 50(1) may resume cohabitation for one period of up to 3 months & still count period of separation prior to that toward the separation (12 months) o 55A (children); a divorce order does not take effect unless the court is satisfied that proper arrangements have been made for the care, welfare, and development of the children < 18yo or circumstances, which warrant effect o 44(1B) (if parties’ married < 2 years) then parties must undertake counselling before a divorce will be granted o 48(3); divorce order will not be granted if court believes there is reasonable likelihood that cohabitation will be resumed Communication of intention to end the marriage Price & Underwood [no divorce because husband did not communicate intention] Married couple had been living in separate residences since ‘originally’ separating in 1991 and subsequently reconciling. Husband who was terminally ill applied for a divorce on the basis they had been living separately and apart since 2005, while the wife said she only became aware the relationship ended in 2007. The wife succeeded in having a divorce order set aside on the basis that the husband’s intention to separate in 2005 was not communicated to her, and in the circumstances, could not be inferred on the basis of separate residences alone.

De Facto Relationships Why is it important? o Obtaining financial (property and partner maintenance) orders o Establishing parentage in assisted conception (ART) context List of indicative factors [4AA(2) & (3) but FLA s 4AA(1) is key o Not legally married to each other or related by family o ‘A relationship as a couple living together on a genuine domestic basis’ o Same-sex or different-sex; can be in another marriage/de facto relationship [s 4AA(5)] FLA financial matters also require (TM 51) o Breakdown of de facto relationship o De facto relationship of minimum of 2 years; OR a child of the relationship; OR substantial contributions and serious injustice would result if order is not made [90SM(4)(a), (b), or (c); OR a registered relationship: s 90SB

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o Can aggregate two or more periods during which parties were in a de facto relationship 90SB(a) [Jonah & White and Moby & Schulter] o Can include periods before 1/3/09, as long as the relationship ended after 1/3/09 [See Moby v Schulter] o Geographical requirement Connection with referring state (FLA ss. 90SD, 90SK) Moby & Schulter The woman claimed there was a de-facto from 02-09 and the man declared it was ‘just sex’. For much of the relationship the man lived in his home and had a daughter from a previous relationship living with him. The judge outlined all the periods he was satisfied there was separation; as per de-facto relationship he added them up Focus is nature of relationship not how it is manifested in joint time o Male partner kept separate residence where he stayed for more than half the time with applicant; Mushin J: there was a de facto relationship o The concept of ‘living together’ does not import any concept of proportion of time  But if a couple doesn’t live together at any time, they can’t be in a de facto relationship, given that the key element is ‘living together’ Jonah & White [De-facto despite short periods ‘living together’] Despite separate households and bank accounts judge considered ‘living together’ was constrained by the fact that it was kept secret from the wife. Also, considered financial support provided by the man and consensual sexual relationship. ‘Coupledom’ a merger of lives into life as a couple (Murphy J) o 17 year relationship; male was married to someone else o Murphy J at first instance: The issue is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union- the merger of two individual lives into life as a couple –that lies at the heart of a finding that there is a ‘de facto relationship’. o Full Court: His Honor’s conclusion that the proper focus of his determination was the nature and quality of the asserted relationship rather than a quantification of time spent together, was in our view, entirely appropriate o The definition may be fulfilled where parties have lived together for a limited periods provided that other indicia or circumstances of the matter enable a finding that they were living together on a genuine domestic basis

Applicants who are not ‘parents’ under the FLA Aldridge and Keaton [involves two women in a same-sex relationship] One of the women had a child through assisted conception. Just before application was heard 60H was amended to include de-facto partners and so the other woman applied for a declaration that she was a parent of the child. o They were not living in a de-facto at the date of conception, and therefore she was not a parent under 60H but still made parenting orders for the

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child to spend time with her on the bass that she was a person concerned with the care, welfare, and development of the child o Reference to ‘parents’ in parts of s 60CC did not mean those considerations were excluded in proceedings between a parent and a non-parent, especially given s 60CC(3)(m) and also (f) –capacity of ‘others’; any relevant matter o S 61DA and s65DAA, ‘are not prescribed pathways’ in proceedings between a parent and non-parent’ but ‘particular applications may make it necessary to address those outcomes in any event’ Wilson & Roberts o Orders for parenting time but not equal shared parental responsibility was made in favour of known sperm donor Maldera & Orbel [successful appeal by maternal grandmother] o ‘60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex’

Which courts? o FCoA, FCCoA, State Magistrate Court o Most applications for parenting orders are now filed in the FCCoA. o The FCoA deals with more complex matters and appeals, although the caseload of the FCCoA also includes complex matters.

Interim Orders Goode v Goode [ESPR may not be appropriate at interim stage, see TM 139]; SCVG & KLD [legislative pathway is to be followed but the level of inquiry depends on overall circumstances]; Escott & Lowe [status quo of interim is a relevant consid.]

The Legislative Pathway (Decision-Making) [Good & Goode applied in MRR v GR] 1. Best interests assessment FLA ss. 60CA; 60CC; s 60B: FLA objects 2. Deciding whether the presumption of equal shared parental responsibility (ESPR) applies FLA ss. 61DA 3. Deciding the appropriate care arrangements FLA ss. 65DAA

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Step 1: Child Best Interest The ‘best interests’ principle (TM 141) S 60CA: Child’s best interests paramount when making parenting order

The primary and additional considerations ‘Primary’ considerations: 60CC(2) (a) The benefit to child of a meaningful relationship with both parents (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence Section 60CC(2A): in applying (2), court to give (b) ‘greater weight’

S 60CC(2)(a): Meaningful relationships (TM 142) McCall and Clark ‘The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents’ Mazorski & Albright ‘A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child’

S 60CC(3): ‘Additional’ considerations [Which Approach?] o Escott & Lowe Findings of fact in relation to the additional considerations provide the substratum of facts for the primary considerations; or o Hutley & Hutley Start with primary considerations o Marsden & Winch (No 3) Primary considerations ‘should be accorded particular importance’ but an additional consideration may outweigh

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S 60CC(2)(b): Protection of children: harm, abuse, neglect or FV Protection from FV and/or abuse Carra & Schultz [early case on new FV definition –relying on 4AB(2)] Father alleges FV against mother who refused to allow him to see daughter. He tries to rely on FLA: ‘preventing the family member from making or keeping connections with his or her family, friends, or culture.’ o This is directed at a situation where one party coerces or control another by keeping them in a state of isolation. The essence of definition of FV is behaviour which ‘coerces or controls’ a family member or ‘causes [them] to be fearful.’ Examples of FV do not form part of the definition. o No evidence here father was coerced, controlled, or fearful. When no time or communication between parent/child is ordered Consider below: what other factors were evident and relevant, in addition to FV? Cannon & Acres [2014] [FV + abuse = order that communication w/ 12yo cease] Father engaged in 7 years of conflict such as stalking and verbal threats. Met the definition of FV. Orders were made that parenting time cease between him and his 12yo daughter. The mother was awarded sole parental responsibility for the child. o In reaching conclusion, Benjamin J noted he gave greater weight to s. 60CC(2) (b). FV was not as severe where no orders for ESPR are made but here it was a combination of s. 60 CC factors, including child’s views (daughter expressed no contact); child’s maturity; mother’s support of father/child relationship, father’s lack of insight and FV. Edwards & Granger [extreme FV perpetrated by father] Benjamin J Mother suffered physical, emotional, psychological injuries as a result of the attack. Despite conviction the father refused to acknowledge attack occurred. He said he would not be “constrained” by court orders. Children were exposed to FV. o I cannot see a way to make orders for time or communication, which could protect children from being exposed to FV. He did not accept responsibility, showed no remorse, showed lack of insight into his behaviour, perceives himself as the victim, continued to abuse mother, threats. He falsely asserted mother was preventing him from seeing his children despite her letting him spend significant time with children. Father is unacceptable risk to the children. What evidence is needed to support allegations of FV? Amador and Amador [international relocation case] 8

o No special requirement of corroboration when FV allegations made o Even if there is no positive finding of FV/abuse, consider whether parenting orders would expose child to an ‘unacceptable risk.’

The unacceptable risk test Developed in context of allegations of child sexual abuse M v M [child abuse case] The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. Determination of risk does not involve positive finding harm occurred. More restrictive application evident over time Re W [sex abuse: standard of proof] Father sexually abused his child over a period of time. CJ Nicholson concluded all contact should cease on grounds child is not adequately protected in any unsupervised contact and detriment outweighs any benefit of supervised contact o Re-balancing the test: Cessation as a last resort: o ‘A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship.’ Harridge & Harridge [Disgusting child abuse decision] Father was awarded supervised time with his 2 children (ages 4 and 6) despite conviction of possession and distribution of child pornography o The access was to be supervised by paternal grandparents and independent child’s lawyer –on the basis grandparents had little insight into father’s offending behavior. Mother sought supervision at child center but this was opposed because he is a registered sex offender. o Murphy J “I find children will clearly benefit from meaningful relationship with father and grandparents”, orders = 1 day every 6 weeks supervised visit. Relevance of an accusing parent’s genuine belief Marsden & Winch (genuinely held belief is relevant) Father was convicted 10 years prior for exposing himself, carrying on a relationship with a teenager. Mother developed PTSD. Psych. Assessments recommended supervised contact proceeding t...