1. family and parenting

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Introduction of the Family Law Act (“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(2) – determining best interests – 12 factors
listed
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the then Federal Attorney General stated that
“These are the most significant reforms to the
Family Law system in 30 years. The initiatives
represent a generation of change in Family
Law and aim to bring about a cultural shift in
how family separation is managed – away
from litigation and towards cooperative
parenting solution. The government wants to
change the way people think about family
breakdowns, and to improve outcomes for
children. The government is reforming the
system to promote shared or cooperative
parenting”
The 2006 reforms changed the
substantive law and legal process but
the key issue is the disjunction between
the ideal of shared parenting and actual
parenting behaviour. See Belinda
Fehlberg and Juliet Behrens Australian
Family Law: The Contemporary Context
Oxford University Press, Melbourne, 2008
page 226
 2006 terminology – equal shared
parental responsibility, lives with, spends
time with
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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)
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s60CA child’s best interests paramount
s60CC 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
These are discussed further below
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Australia ratified UN Convention on Rights of Child 17
December 1990. Most comprehensive statement children’s
rights at international level
Convention had some significance in 1995 reforms. Arguably
not adequately reflected child’s right to be heard.
Article 3 best interests of a child shall be a primary
consideration
This is less stringent than requirement under FLA best interests
paramount
Full Court in B and B: Family Law Reform Act 1995 (1997) FLC
92-755 found that Convention could be referred to in
interpreting Part VII
1995 reforms important guardianship/custody/access gone.
New focus on parental responsibility. Concerned old
terminology had encouraged people to think of themselves
as winners and losers.
Recent years hear more about children’s rights and debate
about children participating in court proceedings and
mediation.
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who is a parent?
question of who is parent of child is
important family law for following reasons:
- parents of the child have parental
responsibility prior to making a court order:
s61C
- child support exclusively parents
Most references in FLA where refer to
parents also include other persons. Parental
responsibility can be allocated to nonparents.
Term parent not defined exclusively FLA.
 Increasing use technology in the conception of
children which is challenging for the law and
ethics.
 S60H and s60HA FLA amended in 2008
 Re Patrick: An Application concerning Contact
[2002] FLC 93-096 – sperm donor is not a parent.
 Re Evelyn [1998] FLC 92-807; [1998] FLC 92-817 –
surrogacy arrangement - highlights the emotional
difficulties which can arise
 Re Mark: An Application relating to Parental
Responsibilities [2003] FLC 93-173 – gay couple
surrogacy arrangement
 PJ v DoCS [1999] NSWSC 340
State laws – parentage presumptions
under Status of Children Act 1996
 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.
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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.
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(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
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(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 de facto partner of, another person (the other intended parent );
and
(b) either:
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(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
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(ii) under a prescribed law of the Commonwealth or of a State or
Territory, the child is a child of the woman and of the other intended
parent;
 then, whether or not the child is biologically a child of the woman
and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended
parent; and
(d) if a person other than the woman and the other intended parent
provided genetic material--the child is not the child of that person.
(2) If:
 (a) a child is born to a woman as a result of the carrying out of an artificial
conception procedure; and
 (b) under a prescribed law of the Commonwealth or of a State or Territory,
the child is a child of the woman;
 then, whether or not the child is biologically a child of the woman, the child is
her child for the purposes of this Act.
(3) If:
 (a) a child is born to a woman as a result of the carrying out of an artificial
conception procedure; and
 (b) under a prescribed law of the Commonwealth or of a State or Territory,
the child is a child of a man;
 then, whether or not the child is biologically a child of the man, the child is his
child for the purposes of this Act.
(5) For the purposes of subsection (1), a person is to be presumed to have
consented to an artificial conception procedure being carried out unless it is
proved, on the balance of probabilities, that the person did not consent.
(6) In this section:
 "this Act" includes:
 (a) the standard Rules of Court; and
 (b) the related Federal Magistrates Rules.
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(1) If a court has made an order under a
prescribed law of a State or Territory to the
effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a
child;
then, for the purposes of this Act, the child is the
child of each of those persons.
(2) In this section: "this Act" includes:
(a) the standard Rules of Court; and (b) the
related Federal Magistrates Rules.
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See Keaton & Aldridge [2009]
Pascoe CFM held that the parties were not in a
de facto relationship at the time of the artificial
conception procedure and therefore the
applicant could not rely on the presumption in
amended s60H.
See also Re Michael: Surrogacy Arrangements
[2009] FamCA 691 for an example of how the
new provisions can lead to strange results.
Application for leave to adopt a child born as
a result of a family surrogacy arrangement.
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legitimacy
Common law distinguished between
legitimate and illegitimate children –
illegitimate children no one was legally
responsible for them. They couldn’t inherit.
These were overcome in the 1970s when
various jurisdictions passed status of children
legislation.
equality of status legislation
See Status of Children Act 1996 (NSW), esp.
s14
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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
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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 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
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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
Russell v Russell & Mayer (1923) 129 LT 151
– physical appearance not enough
 G v H (1994) 181 CLR 387 (reference
made to Bringinshaw v Bringinshaw
(1938) 60 CLR 336)) (PP)inference
 TNL and CYT [2005] Fam CA 77 (PP) –
parentage must be relevant to issue in
dispute
 Tryon & Clutterbuck No.2 (2009)
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(a) Common law
› parental rights: eg name of child, where child resides, administer child’s
property
› diminishing nature of parental rights: see Gillick (UK) and Marion (Aust)
 (b) state and territory powers
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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
 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).
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wardship
 ward of the court (parens patriae)
 ward of the state (Children and Young Persons (Care and Protection) Act
1998)
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K v Minister, Youth & Community Services (NSW) [1982] 1
NSWLR 311
s 67ZC(1) (power)
how wide is this power?
medical/sterilisation cases
referral of powers not extend to adoption and child
protection/ welfare
s69ZK court can’t make an order re a child under state
child welfare law unless child ceases to be under that
care
Welfare orders: s 67ZC welfare power gives court power
virtually equivalent to parens patriae power State
Courts
Re Alex: Hormonal treatment for gender identity
dysphoria [2004] FLC 93-175
DOCS v Y [1999] NSWSC 644 – anorexic teenager
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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.
Re Marion (No.2) [1994] FLC 92-448 proposed
hysterectomy child severely disabled
OBJECTS
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)
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s60CA best interests of the child paramount
s60CC how child’s best interests are determined
Parental responsibility provisions
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
Parenting orders and parental responsibility
s61DA presumption of equal shared parental
responsibility and parenting orders
See also s4 FLA definition of major issues
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"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
(c) the child's health; 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 long-term
issue in relation to the child. However, the decision will involve a
major long-term 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.
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and B: Family Law Reform Act 1995
[1997] FLC 92-755
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and H [2007] FamCA 27 (PP) –
example of presumption not applying
 Chappell
and Chappell [2008]
FamCAFC 143 (Parental responsibility)
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Chapman and Palmer [1978] FLC 90-510
court has to balance factors for and
against name change welfare of child
paramount. Set out 6 factors.
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
Koldsjor & Addington [2009] FamCAFC 21
See also Maluka & Maluka [2009] Fam CA
647 paras 358 to 269 re change of name.
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Note from the extracts the following points from research:
most children want to spent time with both parents
quality of time more important than amount of time
negative impact of ongoing conflict (which does not always
end with separation)
notion of authoritative parenting
Note especially the following extracts:
[21.95] Developing Beneficial Parenting Plan Models for
Children Following Divorce
[21.110] Amato and Gilbreth Nonresident fathers and
children’s well-being
[21.125] Smyth and Chisholm Exploring Options Parental care
following separation a primer for family law specialists
[21.135] McIntosh and Chisholm Cautionary Notes on Shared
Care of Children in Conflicted Parental Separation
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(a) Family Law Amendment (Shared Parental Responsibility)
Act
[22.15] Chisholm Making it Work: 2006 Act
(b) the main statutory provisions and their use
Objects and principles play significant role in interpretation of
the law
S60B objects section.
What implications does maximum extent (re meaningful
relationship) have for amount of time. how is involvement
different from time?
For a useful flowchart setting out the parenting sections see
page 65 of the Fehlberg and Behrens text available on the
supplementary materials website.
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
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Court’s power
s 65D – court may make such order as thinks proper subject to
s61DA and 65DAB
s 65D(2)) court’s power is subject to presumption of equal
shared parental responsibility
s 65DAA court to consider equal time/substantial time
parenting
s 65DAB court must also consider the latest parenting plan (if
applicable)
s 65DAC effect of parenting order on shared parental
responsibility (ie consulting with each other)
s 65DAE no need to consult re non-major long term issues. See
s4 for definition of major issues
High Court emphasized in CDJ and VAJ [1998] that people
may reasonably differ on where best interests of child lie.
These are values not facts.
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Court’s power s65D – court may make sure order as
thinks proper subject to s61DA and 65DAB
s65D(2) court’s power subject to presumption of
equal shared parental responsibility
65DAA court to consider equal or substantial time
s65AB court to consider latest parenting plan (if
applicable)
s65DAC effect of parenting order on shared parental
responsibilty eg consulting with each other
S65AE no need to consult re non-major issues
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s 60CC(2)+(3) ‘considerations’
s 60CC(2): ‘primary’
(a) Benefit of child having meaningful relationship with both parents
(b) Protect child from abuse or family violence
s 60CC(3): ‘additional’
(a) ‘views’ of child
(b) parent/child relationship
(c) willingness of parent to facilitate and encourage a close
relationship between child and other parent - also see s 60CC(4)/(4A)
(d) change of circumstances
(e) contact difficulties (including communication)
(f) capacity to provide for child’s needs
(g) maturity, sex and background/culture
(h) ATSI children (right to enjoy culture) – also note s 60CC(6)
(i) parental attitudes
(j) family violence – also note 60CG (risk factor)
(k) family violence order – also note s 60CF
(l) further proceedings
(m) any relevant fact or circumstance
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New presumption (starting point) if making parenting orders:
s 61DA
Equal shared parenting is in the best interests of the child: s
61DA(1)
Does NOT apply IF there is abuse or family violence: s 61DA(2)
Applies to interim orders: s 61DA(3) and note s 61DB
May be REBUTTED IF not in the best interests of the child: s
61DA(4)
(if making parenting orders – ‘trigger’ effect) Court must
consider child spending equal time or substantial time with
each parent: s 65DAA
Equal time: s 65DAA(1)
(a) is it in the best interests?
(b) is it reasonably practical? – s 65DAA(5)
(c) if so, consider making the order
Substantial and significant time: s 65DAA(2) (when not equal
time – again best interests and practicability considered
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there is a difference between parental responsibility
which exists as a result of s 61C and an order for
shared parental responsibility, which has the effect
set out in s 65DAC
when making a parenting order in relation to a child,
the court must apply the presumption that it is in the
best interests of the child for the parents to have
equal shared parental responsibility
even if the presumption of equal shared parental
responsibility is not applied and neither party seeks an
order for equal time (or by implication substantial
and significant time), the court is nonetheless
required to consider, in determining what is in the
best interests of the child, the arrangements that will
promote the child’s best interests
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it can be fairly said there is a legislative intent
evinced in favour of substantial involvement of both
parents in their children’s lives, both as to parental
responsibility and as to time spent with children,
subject to the need to protect children from harm,
from abuse and family violence and provided it is in
their best interests and reasonably practicable
in this case the trial judge, once he had determined
that the presumption under s 61DA(1) did not apply,
did not address the matters in s 60CC(2) or (3). As
noted, maintenance of the status quo, as sanctioned
by Cowling, is insufficient to meet the requirements
under s 60CC, and the trial judge erred in not giving
consideration to those matters
Newlands v Newlands (2007) 37 Fam LR 103
Escott v Lowe [2007] FamCA 307 – example of a trial
judge working through the steps
MRR v GR
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Until 1990s marked reluctance by courts to allow allegations
of violence by one parent against the other to become
relevant in children’s matters. Eg Heidt [1976]
Jaeger [1994]
S60K court to take prompt actions re allegations child abuse
or family violence
Issue about capacity of courts being able to deal with these
allegations quickly
CW v CW [1998]
Kaye, Stubbs and Tolmie Domestic Violence and Child
Contact Arrangements [2003]
Nawaqualiva v Marshall [2006] FLC 93-296
In the Marriage of JG and BG [1995] FLC 92-515
Patsalou and Patsalou [1995] FLC 92-580
Maluka & Maluka [2009] Fam CA 647
Review notes from topic 6.
2006 change from wishes to views seen
as emphasizing broader based
investigation from child’s perspective.
Also consistent with UN Convention
Rights of Child.
 Joannou and Joannou [1985] FLC 91-642
 ZN and YH and the Separate
Representative [2002] FLC 93-101
 R and R: Children’s Wishes (2000) 25 Fam
LR 712
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Early cases natural parents were
preferred
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Gronow and Gronow [1979] FLC 90-716
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Re Evelyn
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In past homosexuality was something to be overcome
L and L [1983] FLC 91-353 (PP)
Check list of matters to consider when a homosexual parent is
seeking custody or access
Doyle and Doyle [1992] FLC 92-286
Re Patrick (2002) FLC 93-096
Re Mark: An Application Related to Parental Responsibilities [2003]
Fam CA 822
Consequences of non-recognition of the non-biological parent
(note however this is progressively being addressed by Federal and
NSW Governments
› No rights parental leave
› Can’t provide consent for medical procedures
› Can’t provide child care centres & schools with valid permissions
› Problems with overseas travel
› Legal parent dies no automatic assumption that the child will
continue to live with the co-parent
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Child is at a disadvantage is functional parent dies
without a will no automatic entitlements to inherit
NSW was recently reformed its laws
S14 of The Status of Children Act has been amended to
create parentage presumption in favour of female de
facto partner of birth mother.
Flow on effect of this is that both mothers can have their
name as parents on the birth certificate. They can
apply for an amendment retrospectively by consent.
S60H and s60HA also been amended in 2008
Flynn and Jasper [2008] FMCA Fam 106
Applicant referred to as co-parent mother
Some discussion about application of s60CC to nonparent
See earlier comments
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Difficult issues. Greater recognition in
recent years with insertion of specific
provisions drawing the Court’s attention
to cultural issues

B and R and the Separate
Representative [1995] FLC 92-636 (PP)

Re CP [1997] FLC 92-741(PP)
Court required take separation from other
children into account: s60CC(3)(d)(ii)
 Separation is rare. As always in parenting
matters best interests child paramount.
Children’s views important here
 (i) status quo
 Reference to status quo is usually referring
to situation which has become settled after
separation. S60CC(3(d) requires court to
consider effect of any changes

Non-parents can apply for parenting
orders. Often contest grandparents,
other relatives, step-parents
 Rice and Miller [1993] FLC 92-415
 parenthood important but not a
preference for natural parent. Must
determine case on own facts
 Surrogacy arrangements present new
situation

Historically was an issue
 Matrimonial conduct not related to
welfare of child not relevant
 Conduct that impacts on children is
 One form conduct will look at in more
detail is kidnapping
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Courts have found this difficult to deal with- cases
where parties are of different religions or where only one
is religious. The believer is likely to argue that being
brought up in that faith is necessary for the child’s
spiritual welfare
Firth and Firth [1988] FLC 91-971
Paisio and Paisio [1979] FLC 90-659
Plows and Plows [1979] FLC 90-712
Elspeth & Peter [2006] FamCA 1385 esp paras 79, 298299, 235 – 266, 297
Peter & Elspeth [2009] FamCA 551 paras 1 to 9 set out
background to litigation, 93 summarises Benjamin J’s
findings from the 2006 case, paras 143 to 156 re
meaningful relationship, paras 160, 189, 197, 200
These cases concern the Exclusive Brethren. They
highlight the dilemma the court faces in cases like this.
Court may order appointment of
independent children’s lawyer on its on
own motion or application of party
 Can’t require a child to express a view
 s68LA role of ICL
 Re K [1994] FLC 92-461 (PP)
 criteria for appointment? Guidelines set
out in this case. Not exhaustive.

› Allegations child abuse
› Intractable conflict
› Child apparently alienated from 1 or both
parents
› Issues of cultural or religious differences
affecting child
› Sexual preference either or both parents of
other person having significant contact likely
to impact on child’s welfare
› Conduct of either or both parents or other
person having significant contact with child
is alleged to be anti-social to extent seriously
impinges on child’s welfare
› Issues significant medical, psychiatric or
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psychological illness or personality disorders re parent
or other significant person
On material filed by parents neither seem suitable
custodians
Child mature years expressing strong views which
would change long term custodial arrangement or
deny a parent access
Issues significant medical, psychiatric or
psychological illness or personality disorders re parent
or other significant person
On material filed by parents neither seem suitable
custodians
Child mature years expressing strong views which
would change long term custodial arrangement or
deny a parent access
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Where one party proposes child be
permanently removed from jurisdiction
Proposal to separate siblings
None of the parties are represented
Application welfare jurisdiction re medical
treatment and children’s interests not
adequately represented by 1 of the parties
Brear v Corcoles-Alfaro [1997] FLC 92-768 (PP)
Objects refer to desirability of parents
reaching agreement
 Parents can give effect to agreements
by
 Entering into consent orders. These are
lodged with the court and approved by
a registrar, court may have regard to
best interests
 Making a parenting plan
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contravention and enforcement (for contempt):
Stage 3 - ss 70NJ-70NR
three stage compliance regime: new Division 13A
Stage 1: Explanation: to improve communication
and educate parents
Stage 2: Education: remedial measures to improve
parenting (education programs)
Stage 3: Enforcement: last resort … traditional
measures/penalties for enforcement and dealing
with inexcusable intentional breaches
(imprisonment, fine, bond, CSO)
 Unacceptable
risk test
 M v M (1988) 166 CLR 69
(reference made to Briginshaw v
Briginshaw (1938) 60 CLR 336))
(PP)
 Re David [1997] FLC 92-776 (PP)
 [23.45] A v A [1998]
23.60] Johnson and Page
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Referred to Fogarty’s article on
unacceptable risk. He summarized
principles emerging from M and M
decisive issue is and always remains best
interest of child
nature of risk best expressed by term
unacceptable risk
where past abuse alleged usually neither
necessary not desirable to reach definitive
conclusion on that issue
onus proof civil standard
its now more appropriate to refer to s140
Evidence Act rather than Briginshaw
(10) Relocation
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B and B: Family Law Reform Act 1995 [1997] FLC 92-755
A and A: Relocation Approach [2000] FLC 93-035 set out
principles to be applied in relocation cases. 1. Best
interests child paramount but not sole consideration. 2.
Parent wanting to move can’t be required to show
compelling reasons. 3. Court must evaluate parties’
competing proposed. 4. Can’t separate relocation from
residence. 5. Evaluate referring to s68F
U v U [2002] FLC 93-112 not bound by parties’ proposals,
consider whether other parent could relocate
M v S (2006) 37 Fam LR 32 post 2006 didn’t introduce
presumption against relocation
Sampson and Hartnett (No. 10) [2007] Fam CA 1367, (2007)
FLC 93-350, (2008) 38 Fam LR 315 new dimension
considered whether can compel a parent to move. No
doubt can order a parent not to relocate.
McCall and Clark [2009] FamCAFC 92 international
relocation case. Good discussion re meaningful
relationship and factors to consider in a relocation case
(11)Location and recovery orders,
watch list orders
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Location orders – s67J – a location order is a
requirement to provide the registrar of the court
with information about the whereabouts of a child
Commonwealth information orders (s67J(1)(b) may
be directed to Commonwealth agencies such as
Centrelink or the Child Support Agency.
In deciding whether to make a location or
information order the best interests of the child is
paramount.
Recovery order: s67Q to s67X – requires return of
child
Airport watch list orders – Australian Federal Police
(12) International Child Abduction
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Laing v Central Authority [1999] FLC 92-849
P v Cth Central Authority; JLM v Director-General, NSW Dep.
of Community Services [2001] FLC 93-081 (PP)
De L v Director General, NSW Dep. of Community Services
[1996] FLC 92-706; [1997] FLC 92-744 (PP)
MW v Director- General, Department of Community Services
[2008] HCA 12 (PP)
s 65Y/65Z offence
also note ss 65ZA-65BB in relation to obligations of owners of
aircraft etc
Hague Child Abduction Convention (1980)
s 111B FLA (note FLAA 2000 changes)
Family Law (Child Abduction Convention) Regulations
what about non-Hague cases? - appropriate forum test or
best interests test?
(13) Variation of Parenting Orders
Court has been cautious about allowing
parties to reopen proceedings
 Well settled principle Rice and Asplund
formulated to promote best interests
child.
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SPS and PLS (2008) Fam LR 295 (PP)