FAMILY LAW
TOPIC 5:
PARENTING DISPUTES
Family Law Topic 5
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CAUTION
 This PPT does NOT reflect the
amendments which came into effect on 7
June 2012.
 These amendments are contained in the
student notes for this topic
Family Law Topic 5
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(1) PARENTAL POWERS AND
RESPONSIBILITIES
(a)
Common Law

‘guardianship’ and ‘custody’ long
term vs short term
 parental rights (egs)
- name of child
- where child resides
 (and ‘access’)
 diminishing nature of parental
rights?
see Gillick (UK) Marion (Aust)
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(1) PARENTAL POWERS AND
RESPONSIBILITIES
(a) Common Law

In Gillick v West Norfolk and Weisbech
Area Health Authority (1986) AC 112
Lord Scarman stated:
... Parental rights yields to the child's
rights to make his own decisions when he
[or she] reaches a sufficient
understanding and intelligence to be
capable of making up his [or her] mind on
the matter requiring decision (at p 186).
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(b) State and Territory
Laws
(i) parens patriae jurisdiction


Origins in Chancery (Equity)
G -v- P (1977) VR 44:
... in all matters relating to the custody,
guardianship and welfare of all infants,
whether born in or out of wedlock (at p 46).
(ii) wardship
 ward of the court (parens patriae)
 ward of the state: Children and Young
Persons (Care and Protection) Act 1998
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The United Nations Convention on the Rights of the
Child (UNCROC)
 1924 Geneva Declaration
 1959 UN Declaration
 1979 International Year of the Child
 1989 Convention
 1990 Australia ratifies
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(c)
Part VII Family Law Act
UN Convention of Rights of
the Child 1989 (UNCROC)
 (UK) Children Act 1989
 Joint Select Committee 1992
 Government Response 1993
 Family Law Council (etc) comments
 Family Law Reform Act 1995 (a new Pt
VII of the FLA) (June 1996)
 Family Law Amendment (Shared
Parental Responsibility) 2006 (July
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2006)
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(c)
Part VII Family Law Act
 Object of Part VII
see s60B (**new in 2006)
 Children’s rights: to ensure that the best
interests of the children are met by:
 meaningful relationship with both parents:
s60B(1)(a)**
 protecting children from abuse: s60B(1)(b)**
 ensuring children receive adequate and
proper parenting s60B(1)(c)**
 ensuring parents fulfil their duties and meet
their responsibilities: s60B(1)(d)**
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(c)
Part VII Family Law Act
 Object of Part VII/children’s rights
 right to know and be cared for by both
parents: s60B(2)(a)
 right to regular contact with parents and
significant others: s60B(2)(b)
 parents jointly share duties and
responsibilities: s60B(2)(c)**
 parents should agree about future
parenting: s60B(2)(d)
 right to enjoy their culture: s60B(2)(e)**
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(c)
Part VII Family Law Act
Parental Responsibility
 shared by parents (equally?)
 see s60B(2)(c), 61C
 examples include:
 providing a home
 having contact
 Protecting and maintaining
 determining education and religious needs
 consenting to medical treatment
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(c)
Part VII Family Law Act
Part VII – Divisions
1. Objectives (new subdivisions**)
2. Concept of Parental Responsibility
3. Counselling
4. Parenting Plans
5. Parenting Orders
6. ‘Nuts and Bolts’ of Parenting Orders
7. Child Maintenance
8. ‘Other Matters’
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(c) Part VII Family Law Act
Part VII – Divisions (con’t)
9. Injunctions
10. Best Interests Principles
11. Family Violence
12. Jurisdiction
13. Registering State, Territory or
Overseas Orders
13A. Parenting Compliance Regime
(including contempt)
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(d) Change of name issue
 Parental responsibility
 Remedy – injunction s 68B
 Consent?
 Welfare of child?
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(2) PARENTAGE OF CHILDREN
(a)
Legitimacy
 filius nullius
 Marriage Act 1961
see ss 89, 91, 92
(b)
Equality of Status Legislation
 Status of Children Act 1996
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(2) PARENTAGE OF CHILDREN
(c)
Establishing the Parentage of
Children
 mater sempter certa est pater incertus est
 parentage presumptions
 marriage: s 69P
 defacto relationship: s 69Q
 birth certificate: s 69R
 court findings: s 69S
 acknowledgment: s 69T
 presumptions are rebuttable
see s 69U (civil standard)
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(2) PARENTAGE OF CHILDREN
(d) Parentage Evidence
Note ss 69V and 69VA
(i) physical appearance?
(ii) blood group evidence?
(iii)DNA (deoxyribonucleic acid molecule)
(iv)court enforcement?
s 69W (court request)
s 69X (types of orders) and Regulations
(v) failure to comply
s 69Y (adults)/s 69Z (children)
Also note ss 69ZA-ZD
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(2) PARENTAGE OF CHILDREN
Paternity tests rise (Sun-Herald, 27.3.05)
The use of DNA paternity tests has increased by
more than 60 per cent over the past three years, say
Australian testing laboratories.
Scientists estimate that 5000 tests are expected this
year, up from 3000 in 2002.
They estimate up to 10 per cent of men who believe
they have fathered a child are not the biological
parent, while 20 per cent of those who demand a
paternity test have that fear confirmed.
Men from poorer backgrounds comprise the bulk of
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those tested.
(2) PARENTAGE OF CHILDREN
(e) Surrogacy
 State laws – parentage presumptions
under Status of Children Act 1996
 s 14 SOCA – irrebuttable presumption
(legal fiction created)
 s 60H FLA (effect?)
 Relevance of contract law and promissory
estoppel?
 Best interests test applies
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(3) PARENTING ORDERS
(a)
Parenting Orders



s 61D/s 64B (new) s 64B(2)
alters shared parental responsibility
(old) residence
(new) – lives with: s 64B(2)(a)
(old) contact
(new) time child spends with: s
64B(2)(b); communication (with): s
64B(2)(e)

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(3) PARENTING ORDERS
(a)
Parenting Orders

(old) specific issues
(new) allocation of parental
responsibility: s 64B(2)(c) (and note s
64B(3);
and if two+ the form of communications
about parental decisions: s 64B(2)(d)
(and note s 64B(4))
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(3) PARENTING ORDERS
(a)

Parenting Orders
(old) child maintenance
(new) s 64B(2)(f) (non- CSAA
children) (and note s 64B(5))

Also note s 64B(2)(g)(variations); s
64B(2)(h) DR process; s 64B(2)(i)
any aspect of the care, welfare or
development of the child/parental
responsibility
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(3) PARENTING ORDERS
(b)
Who may apply?
 s 65C (applicant)
 parent
 child
 grandparent
 ‘concerned person’
 s 69E (jurisdiction)
 connection to Australia
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(3) PARENTING
(c)
ORDERS
Court’s Power
 see s 65D
 child must be <18 etc and not married or
in a de facto relationship: s 65H
 (new/s 65D) court’s power is subject to
presumption in s 61DA that equal shared
parental responsibility is in child’s best
interests
 (new/s 65DAA) court to consider equal
time/substantial time parenting
 (new/s 65DAB) court must also consider
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the latest parenting
plan (if applicable)
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(3) PARENTING
(c)
ORDERS
Court’s Power
 (new/s 65DAC) effect of parenting order
on shared parental responsibility (ie
consulting with each other)
 (new/s 65DAE) no need to consult re nonmajor long term issues
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(3) PARENTING ORDERS
(d) Best Interests of Child are Paramount
 So what does ‘best interests’ (paramountcy
principle) actually mean?
 (old) s 65E (new) ss 60CA and 65AA**
(overriding consideration - ‘must regard’)
- (old) s 68F(2) (12 considerations)
- (new) s 60CC** (2 primary/13 additional)
- the two primary** are: meaning relationship
with both parents and new to protect child
from abuse etc
 also note counselling requirement: (old) s
65F (new) Div 1 Subdiv
E ss 60I-60J** 26
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(4) WELFARE ORDERS
(5) LOCATION AND RECOVERY OF
CHILDREN


We will defer these two sub-topics until
after we consider sub-topic (6) on ‘best
interests’
But note, the ‘best interest’ factors have
relevance to the ‘welfare;, ‘location’ and
‘recovery’ powers
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(6) BEST INTERESTS PRINCIPLES
 June 1996 - July 2006
 s 68E(1)
 s 68F(2) ‘factors’
(a) wishes of child
(b) parent/child relationship
(c) change of circumstances
(d) contact difficulties
(e) capacity to provide for child’s
needs
(f) maturity, sex and background
(including ATSI)
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(6) BEST INTERESTS PRINCIPLES
 June 1996 - July 2006
 s 68E(1)
 s 68F(2) ‘factors’
(g) protection from abuse
(h) parental attitudes
(i) family violence
(j) family violence order
(k) further proceedings
(l) any relevant fact or circumstance
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(6) BEST INTERESTS PRINCIPLES
 July 2006 - Div 1 Subdiv BA ss 60CA-60CG**
 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
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(e) contact difficulties
(including communication)30
(6) BEST INTERESTS PRINCIPLES
 July 2006: s 60CC(3)**: ‘additional’
considerations (con’t)
(f) capacity to provide for child’s needs
(g) maturity, sex and background/culture
(h) ATSI children (right to enjoy culture) – also
note s60CC(6)
(i) parental attitudes
(j) family violence – also note s60CG (risk factor)
(k) family violence order – also note s60CF
(l) further proceedings
(m) any relevant fact or circumstance
 s 60CC(5)**: not mandatory considerations for
approval of consent orders
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(6) BEST INTERESTS PRINCIPLES
NEW PRESUMPTION/STARTING POINT: s61DA**
 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)
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(6) BEST INTERESTS PRINCIPLES
COURT MUST CONSIDER CHILD SPENDING
EQUAL TIME OR SUBSTANTIAL TIME WITH EACH
PARENT: s65DAA**
 Equal time: s65DAA(1)
(a) is it in the best interests?
(b) is it reasonably practical? – s65DAA(5)
(c) if so, consider making the order
 Substantial and significant time:
s65DAA(2) (when not equal time – again
best interests and practicability
considered
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(6) BEST INTERESTS PRINCIPLES
 See Goode v Goode (2006) 36 Fam LR
422; (2006) FLC 93-286; [2006] FamCA
1346 (per Bryant CJ, Finn and Boland JJ)
 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 [at 39]
 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 [at 43]
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(6) BEST INTERESTS PRINCIPLES
 See Goode v Goode (2006)
 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 [at 47]
 effect of the 2006 amendments? [at 65] - see
summary pp 8-9 of M&Y text update
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(6) BEST INTERESTS PRINCIPLES
 See Goode v Goode (2006)
 interim orders issue and Cowling (1998) 22
Fam LR 776; FLC 92-801 – needs to be
reconsidered in light of the changes to the Act
[at 71] (see pp 310-314 M&Y and pp 18-20 update)
 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 [at 72]
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(6) BEST INTERESTS PRINCIPLES
 See Goode v Goode (2006) 36 Fam LR
422; (2006) FLC 93-286; [2006] FamCA
1346 (per Bryant CJ, Finn and Boland JJ)
 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 [at 110].
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(6) BEST INTERESTS PRINCIPLES
(a) Wishes/Views of the child
 see (old) s 68F(2)(a) (new) s 60CC(3)(a)**
 family reports: (old) ss 68G, 62G (new) s
60CD** (family report, ICL, FLR)
 children’s evidence: see FLR
 right to silence: (old) s 68H (new) s 60CE**
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(6) BEST INTERESTS PRINCIPLES
(b) Parent-child r’ship
 see (old) s68F(2)(b)
 (new) s60CC(3)(b)
 family reports: s62G
 meaning of ‘other persons’?
 ‘mother’ principle?
 ‘natural parent’ principle?
 ‘surrogacy’ issue?
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(6) BEST INTERESTS PRINCIPLES
(c)
Likely effect of any changes
 see (old) s68F(2)(c)
 (new) s60CC(3)(d)
 desirability of preserving the ‘status quo’
 separation of siblings
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(6) BEST INTERESTS PRINCIPLES
(d)
Relocation & Contact
 see (old) s 68F(2)(d)
 (new) s60CC(3)(e)
 what does ‘contact’ mean?
 Part VII object: s 60B(2)(b)
 s 60D definition – s 64B(4)
 presumption in favour?
 unacceptable risk?
 presumption against non-parents?
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(6) BEST INTERESTS
(d)
PRINCIPLES
Relocation & Contact
 relocation and contact orders
 see B and B (1997) Full Court
 relevant considerations
degree and quality of existing
relationship with residence parent and
contact parent
reason for relocation
distance and permanency of relocation
effects on the child of relocation
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(6) BEST INTERESTS PRINCIPLES
(d)
Relocation & Contact
 relocation and contact orders
 Note: HC in U v U (2002) re-affirms
‘paramountcy principle’ cf A and A (2000)
 Also see recent cases like M & S [2006] FamCA
1408 (per Dessau J) – no special relocation
provision and no onus on re-locator under
recent changes – court is directed by the FLA
‘squarely to maintaining the important
relationship between a child and his/her parents.
But the child’s best interests remain the court’s
paramount consideration’ [at 39]
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(6) BEST INTERESTS PRINCIPLES
(e)
Racial, Cultural and Religious Issues
 see (old) s 68F(2)(f)
 (new) s60CC(3)(g)+(h)
 also see (old) s 68F(2)(l)
 (new) s60CC(3)(m)
 re religion: court may examine
‘tenets and practices’
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(6) BEST INTERESTS PRINCIPLES
(f)
Sexual orientation of
parents
 see (old) s 68F(2)(l)
 (new) s60CC(3)(m)
 L and L (1983) criteria
 L and L correctness doubted by
Nicholson CJ in a 1996 speech (see
1997 AJFL article “Changing Concept of
the Family”)
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(6) BEST INTERESTS PRINCIPLES
(g)
Family Violence
 child abuse allegations: s 67Z (details to
be reported to DOCS)
 see (old) s 68F(2)(g) (new) s 60CC(2)(b)
 civil standard of proof (but s 140 Evidence
Act 1995/Briginshaw standard applies):
Re W (2004)
 false accusations: Re David (1997)
 also see (old) s 68F(2)(i) and s 68F(2)(j)
 (new) s 60CC(3)(j)+(k)
 also see Division
11 (in particular s 68T)46
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(4) WELFARE ORDERS

s 67ZC(1) (power)

s 67ZC(2) (consideration)
[ie back to old s68F(2) new s
60CC(2)/(3)**]

s 69C (applicant)

how wide is this power?

medical/sterilisation cases
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(5)
(a)




LOCATION AND RECOVERY
OF CHILDREN
Intra/Interstate Child Abduction
Obligations/Hindering or interfering with a
(parenting) order: s 65M (lives with) s 65N
(spends time with) s 65NA (communicates with)
– also note s 65P FLA
Warrant may be issued: s 65Q FLA
Parental Compliance Regime – Stage 2
‘education course’?
Stage 3 ‘penalties’ include imprisonment, fine,
GBB, sentencing alternative: Pt VII Div 13A
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(5)
LOCATION AND RECOVERY
OF
(a)
Intra/Interstate Child Abduction
CHILDREN
(i) Location Order
 s 67J (definition)
 s 67M(3) (power)
 s 67K (applicant)
 s 67L (overriding principle)
(ii) Recovery Order
 s 67Q (definition)
 s 67T (applicant)
 s 67U ( power)
 s 67V (overriding
principles)
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(5)
(b)
LOCATION AND RECOVERY
OF
CHILDREN
International Child Abduction
 s 65Y/65Z offence
 ss 65ZA/65ZB aircraft etc owners
 Hague Convention Civil Aspects of International
Child Abduction (1980)
 s 111B FLA (note FLAA 2000 and FLAA 2003
changes)
 Family Law (Child Abduction Convention)
Regulations
 what about non-Hague cases (appropriate forum
test or best interests test )?
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(7)
SEPARATE REPRESENTATION OF
CHILDREN (ICL)
see s 68L (independent children’s lawyer)
applicant: s 68L(3)
order child be available: s 68M
who represents? Legal Aid? s 116C
who pays?
note s 68L(2A) strict test for Hague matters
role of separate rep
 cross examine parties
 evidence in chief
 evidence of wishes
 (new) s 68LA
 also see 2003 ‘Guidelines’/Law Soc Rep’n
Principles







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(7)
SEPARATE REPRESENTATION OF
CHILDREN
criteria for appointment of ICL?
see FC guidelines in Re K (1994)







Abuse
Intractable conflict
Child-parent alienation
Cultural or religious differences
Sexual preferences
Party’s conduct
Illness issues
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(7)
SEPARATE REPRESENTATION OF
CHILDREN
Re K (1994) (con’t)
 Neither parent seems a suitable custodian
 Mature child/strong views – effect changes
long standing custody or access denial
 Relocation (& consequential access
problem)
 Proposed to separate siblings
 Cases where neither party legally
represented
 Welfare jurisdiction and a medical procedure
 In circumstances of case it is appropriate
(but failure to do so should not lead to
appeal)
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(8) PARENTING PLANS





see s 60B(2)(d)
defined: s 63C(1)
must be explained: s 63DA
may be registered (to Jan 2004 ONLY): s 63E
may include child support/maintenance: ss
63CAA, 63G
 restricts courts powers to subsequently act: s
63H
 Note (new) s 64D: parenting orders subject to
later parenting plans
 Note (new) s 65DAB: court is to have regard to
the terms of the most recent parenting plan if
doing so would be inFamily
theLaw
best
interests of the
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child.
54
(9) PARENTING COMPLIANCE REGIME
Three stage compliance regime:
Division 13A (FLAA 2000)
 Stage 1: Explanation: to improve
communication and educate parents
 Stage 2: Education: remedial measures
to improve parenting (education
programs)
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(9) PARENTING COMPLIANCE REGIME
Three stage compliance regime:
Division 13A (FLAA 2000) (con’t)
 Stage 3: Enforcement: last resort …
traditional measures and penalties for
enforcement and dealing with
inexcusable intentional breaches
(fine, imprisonment, bond, CSO)
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