Parenting Orders and Children Study Notes PDF

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Parenting Orders and Children Jurisdiction: Family Law Act 1975 (FLA) 1. Married (s 51(xxii) of the Constitution) or defacto (state referral of power s 51(xxvii) 2. Jurisdiction in relation to instituting a matter (s 69E) If child is citizen or ordinarily resident on the day application filed can be...

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Parenting Orders and Children Jurisdiction: Family Law Act 1975 (FLA) 1. Married (s 51(xxii) of the Constitution) or defacto (state referral of power s 51(xxvii) 2. Jurisdiction in relation to instituting a children’s matter – (s 69E) If child is citizen or ordinarily resident on the day application filed – can be filed by child’s parent, child, grandparent or other person concerned with care, welfare or development (s 65C)(standing) Defacto definition s 4AA: not legally married to each other, not related by family, live together on a genuine domestic basis. Standing and definition of a parent Artificial conception procedures (s 60H) (the child is the child of the woman and of the other intended parent) Surrogate parents (s 60HB) (where the court has made an order under prescribed law to state that a child is the child of one or more persons- they are the child’s parents). Who may apply (s 65C)? Biological parent, child, grandparent or non-parent (concerned with care, welfare and development of the child). Pre-filing obligations and processes 1. Relevant pre filing obligations (s 63DA; 60D) As X is asking for advice on his parental responsibility following his relationship breakdown, I have an obligation to inform his that he should consider entering into a parenting plan (s63DA(1)(a), amongst other matters regarding time spent with the child, and that X should consider kid’s bests interests above all (s 60D). 2.

Legal practitioners must give information about compulsory FDR – s 60I (s 60I(7) Before applying for a parenting order under Part VII of the FLA, parties must make a genuine effort to resolve that dispute by family dispute resolution (s 60I). (s 60I(9)) The process will not be required if it can be shown that: there is evidence of child abuse or family violence; one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason). S 4AB family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful. AVO: X may report incident or behaviour to police and seek and Apprehended Violence Order for future protection based on a fear of: ‘personal violence offence’ being committed against them; or intimidation (including harassment or molestation); or stalking, If the parties attend FDR and the matter cannot be resolved, the practitioner may give the parties a certificate and the matter will be filed with the court.  Parenting plan? Parents are encouraged to reach an informal agreement between themselves about matter concerning their children by entering a parenting plan under s 63C of the FLA. This agreement must: be made in writing (s 63C(1)(a); be made between the parents of the child (s 63C(1)(b)); be signed and dated by each of the parties (ss 63C(1)(ba) and (bb); and could deal with: - The person or persons with whom a child is to live; - The time a child is to spend with another person or other persons - Any aspect of the care, welfare or development of the child or any other aspects of parental responsibility for a child. PQ: On the current circumstances, as the parents appear to be quite amicable in their separation, a parenting plan may be advised as a possible way forward (in accordance with the s 63DA obligations of advisors).

If this suggestion is not met openly, parenting orders can be sought from the Family Court or FCC, and the court has the power to make such orders as it thinks proper (s 65(D)(1)). Interim and final orders, family reports, ICLs, violence  Goode v Goode articulated a three step framework for determining PO (in interim decisions) after findings of fact made and s 60CC factors considered.  A different approach is taken where there are allegations of FV and/or CA, but Goode pathway makes it very difficult to overcome presumption of ESPR or secure an order for no/little time except in extreme cases of violence. 1. Filing an application for Interim or Final orders (note differences between the two, with interim orders being heard more quickly but a 2 hour hearing on the papers). There can be more than one interim hearing in a matter. 2. Importance of s 11F Memorandums (interim matters) and for final hearings: Family Report and children’s views under s 62G(3A) and (3B) and appointment of ICL where appropriate (RE K) under s 68L; and BI role s 68LA. 3. Court requirements where risks associated with FV or CA: S 67ZBA: If a person alleges family violence or a risk of, the interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the other party. If it’s child abuse, must file a notice but not to other party (s 67ZBA(3)(a)). S 67ZBB: court to take prompt action in relation to allegation of child abuse or FV as soon as notice is filed. Must consider what interim or procedural orders should be made to deal with issues raised by allegations as expediously as possible, to protect child and to enable appropriate evidence to be obtained. S 60CG: Court to consider risk of family violence when making an order to ensure the order is consistent with any family violence order and does not expose a person to an unacceptable risk of FV. Courts may make interim parenting orders, about where the children are to live among other things, pending final orders being made (s 64B) and as the children are currently residing with X, it is likely that they will be ordered to live with X. Child’s views The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable (s 62G(2)). ICL may be ordered pursuant to ss 68L and 68LA. Re K (1994): In this decision the Full Court of the Family Court set out a series of guidelines to assist future Courts when being asked to appoint an ICL. As such, cases involving the following issues may warrant the appointment of an ICL

allegations of child abuse;

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intractable conflict between the parents;

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alienation of children from either parent;

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cultural or religious differences that affect a child;

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sexual preferences of parents or parties that could impact on the welfare of the child;

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serious anti-social behaviour of a parent or carer that impacts on a child;

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serious medical or other illness suffered by a parent, carer or child;

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circumstances where neither parent seems an appropriate carer for a child;

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a mature child expressing strong views not to see a parent or to change a longstanding arrangement;

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circumstances where it is proposed to remove a child from Australia or to a place in Australia that will make it difficult for a child to see a parent;

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circumstances where siblings may be separated;

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where all parties in a matter are unrepresented;

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applications regarding special medical procedures.

Step One: Best Interest of the Child S 60CA asserts the child’s best interests are the paramount consideration when making a parenting order. Regard is had to the objects and principles in s 60B and the considerations in s 60 CC when assessing what is in the child’s best interests. The primary considerations or “twin pillars” (McCoy v Wessex) set out in s 60CC: - Meaningful relationship: G v C; Moose & Moose McCall & Clark: preferred the “prospective approach” interpretation of s 60CC(2)(a): 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. - Protection from harm: Where there are allegations of family violence, it must be severe and well evidenced for it to outweigh perceived harm of loss of relationship with a parent. This is a subjective test pursuant to the s 4AB definition of family violence (pg 9 of notes). - “While there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintain such a relationship” – Marsden & Winch  Supervised contact is an option but not long term: Moose & Moose [2008]  No contact orders: Cannon & Acres [2014] (combination of violence/abuse);  Edwards & Granger: extreme family violence. “Given all the evidence and findings of fact, I am satisfied that the father presents as an unacceptable risk of harming the mother and the children physically, psychologically and emotionally if he has any time or communication with them.” - M v M (1988): If the court is unable to make a conclusive finding with regard to FV or abuse, it must still consider whether parenting orders would expose a child to an unacceptable risk. Unacceptable risk test: The unacceptable risk test set out in the High Court case of M v M purports to balance the risk of detriment to a child from sexual abuse against the possible benefits that child may gain from spending time with the parent accused of abuse. The basic premise of this deceptively simple test is that a court should not make orders that will expose a child to an 'unacceptable risk' of abuse. ^The decisive issue is and always remains the best interests of the child. UR is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. “As per Rose J in Escott and Lowe, I will reference the facts to the extent they are relevant to s 60CC(3)” Additional considerations s 60CC(3) 13 considerations, including  Children’s views s 60CC(3)(a): In the Marriage of R: the principle is clear that a Court must take children’s wishes into account but is not bound by them. Escott & Lowe: suggests that where children express their views in addition to a child expert expressing their views, greater weight will be given to the child expert’s interpretation.  Parent-child relationship s 60CC(3)(b): while motherhood is a relevant consideration, there is no longer a presumption in favour of the mother over the father: Gronow v Gronow

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Extent to which the parent has taken, or failed to take, the opportunity: i)to participate in making decisions about major long term issues ii) to spend time with the child; and iii) to communicate with child s 60CC(3)(c) Separation from parents/siblings: 60CC(3)(d)(ii) ATSI cultural considerations: 60CC(3)(h) & (6) Family violence: s 60CC(j) & (k) Carra & Schulz [2012]: Hughes FM put forward an example where ‘preventing the family member from making or keeping connections with his or her family, friends or culture’ will constitute violence, namely, where one parent flees from violence and does not take the child with them. If the other parent prevents the fleeing party from spending time or communicating with the child as a means to coerce or control the fleeing parent or to cause them to be fearful about their own or the child’s safety= FV.

PQ MR: Applying the prospective approach preferred in McCall & Clark, the current evidence regarding ___ should be given great weight going towards ensuring the child has a meaningful relationship with both parents and make orders accordingly. PFH: 1. On the facts, I am not convinced that the allegations of family violence are severe or that there is enough evidence to displace the benefit X will gain from having a meaningful relationship with her father. 2. Applying the majority remarks in Marsden & Winch, while there may be great benefit attached to X having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect X from physical or psychological harm associated with maintain such a relationship.” As such, the need to protect X from harm outweighs the benefit she may derive from a meaningful relationship. Possible findings: Section 60CC(3)(i) “concerns the parties attitudes to the children and the responsibility of parenting. Both parents are focused on their children's wellbeing and are demonstrably responsible parents.” Time spent: The mother has facilitated the children spending time with and communicating with their father to the extent she believes is developmentally and circumstantially appropriate. The father wants to spend more time with the children. Financial contribution: I have made findings concerning the father’s financial contribution towards the children. On the information available he appears to have properly fulfilled his obligation to financially support the children, as indeed has the mother.

Step Two: Equal Shared Parental Responsibility The relevant sections in applying the presumption of equal shared parental responsibility are ss 61B, 61C and 61DA. Pursuant to s 61DA, when making a parenting order, courts 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. This presumption does not apply where there are reasonable grounds for establishing family violence or child abuse. S4 ( 1)"maj orl o ngt e r mi s s ue s ", i nr e l a t i ont oac hi l d,me a nsi s s ue sa bou tt hec a r e , we l f a r ea ndde ve l opme ntof t hec h i l do fal on g t e r mn a t u r ea n di nc l u de s( b uti sno tl i mi t e dt o )i s s u e soft h a tn a t u r ea bo ut : ( a )t h ec hi l d' se d uc a t i o n( b o t hc u r r e n ta ndf u t u r e ) ;a n d ( b )t hec h i l d ' sr e l i gi o usa n dc u l t u r a lupb r i n g i n g ;a n d ( c )t h ec hi l d' she a l t h ;a nd ( d )t h ec h i l d ' sn a me ;a nd ( e )c ha n g e st ot hec h i l d ' sl i vi n ga r r a n g e me nt st ha tma k ei ts i gn i fic a nt l ymo r edi ffic ul tf o rt hec hi l d t os p e ndt i mewi t hapa r e nt .

Toa v o i dd ou bt ,ad e c i s i o nb yap a r e ntofac hi l dt of o r mar e l a t i o ns h i pwi t hane wpa r t ne ri sno t , ofi t s e l f , ama j orl ongt e r mi s s uei nr e l a t i o nt ot hec h i l d .Ho we v e r ,t h ed e c i s i o nwi l li n v ol v eamaj orl o ng t e r mi s s uei f , f ore xa mp l e ,t h er e l a t i on s hi pwi t ht h ene wp a r t ne ri n v ol v e st h epa r e n tmo vi n gt oa no t he ra r e aa ndt hemo v ewi l l ma kei ts i gni fic a n t l ymo r ed i ffic u l tf o rt hec h i l dt os pe n dt i mewi t ht heo t he rpa r e n t The presumption of ESPR may be rebutted or found not to apply because it would be contrary to the best interests of the child (s 61DA(4)). Hutley v Hutley: presumption did not apply due to family violence. Austin J still ordered ESPR as the father clearly wanted to participate in decisions relevant to the children’s welfare, the parties had proven ability to communicate constructively and because of the manner in which both parties had exemplified their past ability to successfully collaborate over decisions concerning the children. Parkin & Sykes: the parents had a very poor relationship, did not speak with one another, and had been ‘locked in conflict since separation’. This was viewed not to be a recipe for effective sharing of decision making responsibility in relation to the child by his parents. Presumption was rebutted and child ordered to live with mother. Goode v Goode: “Both parties give a detailed account of the evidence they say will support findings concerning the occurrence of family violence during cohabitation. The evidence does not appear inherently incredible and in my view the evidence is sufficient for me to conclude that there are reasonable grounds in this interim hearing to find that during cohabitation there has been family violence. The presumption of equal shared parental responsibility therefore does not apply. However, this is not the end of the issue concerning whether or not the Court should make an order that the parties equally share parental responsibility for the children.” “In this case I do not see any obvious detriments flowing from an interim equal shared parental responsibility order.”

Step Three: Time Arrangements under Section 65DAA 

If the court makes an order for ESPR, the court must consider whether it is in the best interests of the child to spend equal time with each of the parents, and if it is reasonably practicable: 65DAA(1)(a) and (b).  If answer to both is yes the court makes an order that child is to spend equal time: 65DAA(1)(c).  Where there is an order for ESPR but court does not make an order for equal time, it must consider making an order for substantial and significant time with each parent, again after considering the best interests of the child and if it is reasonably practicable: s 65DAA(2). Substantial and significant time = what constitutes ‘substantial and significant time’ varies from case to case but will always have to comply with requirements created by s 65DAA(3) (Eddington & Eddington)  Parents can agree to ESPR despite FV: North & North  Non-parents: presumption and s 65DAA do not apply: Aldridge v Keaton Reasonable practicability a) How far apart parents live b) Parent’s current and future earning capacity to implement arrangement for equal time or SST c) Capacity to communicate d) Impact an arrangement will have on the child; and e) Such other matters as relevant. MRR v GR: FM Coker ordered five-year-old a week about arrangement that required the mother to live in Mt Isa, where the father worked and the parties had briefly lived, rather than in her hometown in Sydney. HCoA held that Federal Magistrate had erred when applying s 65DAA in not considering and making findings that equal time would be the child’s best interests and reasonably practicable. In accordance with the majority judgment in MRR v GR, reasonably practicability of ET or S&ST is an integral consideration to an order. In the current circumstances it can be inferred that … Conclusion after reasoning from facts - What orders would the TJ be likely to make?

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Suggest if they would order ESPR and why or why not? Also if ET and S&ST likely (give reasons why you thinks so) Consider facts and also take into account children’s ages and development and how these might impact on orders. Note importance of expert evidence on these matters.

Varying orders= pg 25 notes.

Relocation *Consider in step one General approach to interim relocation decision making set out in Morgan & Miles: In considering whether the child should live with the parent who proposed to relocate a court:  Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.  Make orders having regard to the child’s best interest as the paramount, but not the sole, consideration  Be guided by objects and principles underpinning legislation.  Apply ESPR (unless rebutted or family violence)  When dealing with an application involving intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made…

It follows from my exposition of the legislation, that earlier core principles:  That the child’s best interests remain the paramount but not sole consideration;  That a parent wishing to move does not need to demonstrate ‘compelling’ reasons;  That a judicial officer must consider all proposals, and may himself be required to formulate proposals in the child’s best interests; (including the non-resident parent relocating too U v U)  The best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement. Majority in Taylor v Barker: relocation should not be consid...