While every picture tells a story,
Every Story is Different
In the best interests of the children
A perspective of the 2006 amendments to the
Family Law Act from the Family Court of Australia
SHARED PARENTAL RESPONSIBILITY IN AUSTRALIAN
FAMILY LAW AND THE IMPACT ON CHILDREN
DEPUTY CHIEF JUSTICE FAULKS
14 APRIL 2008
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Overview
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Introduction
Equal shared parental responsibility
Best interests of children
Meaningful relationships
Violence
Rebuttal of the presumption of ESPR and
equal time
• Relocation
• The Less Adversarial Trial
• Some concluding thoughts
2
Equal Shared Parental
Responsibility
• Presumption
• Rebuttable - what that means
• Does not in itself relate to the
time children spend with a
parent
• Does not dictate how PR will
be shared
3
Best Interests of the Children
• The child or children’s best interests are
paramount
– Primary considerations
– Additional considerations
• Need for evidence
• Those who can or will help
4
Meaningful Relationships
• No fixed or immutable meaning
• Godfrey & Saunders
• Meaningful does not necessarily equal optimal
“…courts cannot by order create meaningful
relationships between parents and children; they
can only create or maintain the circumstances
that make meaningful relationships possible”
(Professor Patrick Parkinson)
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Best interests
Post 2006 the pathway may be different
but the destination – to determine what
would be in the child’s best interests –
remains the same
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Violence
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Width of definition
Difficulties with evidence (AIFS research)
FCoA’s Family Violence Strategy
Magellan
Role of FCoA is not to investigate but rather to
evaluate the evidence
Form 4s (Section 60K)
What happens
The effect of the LAT
Safety and natural justice
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Rebutting the Presumption
• Factors which militate against ESPR
• Recording outcomes
• The legislature cannot make laws to make
people co-operate; judges cannot make
orders to change human relationships
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Equal time?
• The effect of the presumption
• The rebuttal of the presumption does not
preclude of itself either parent seeking
equal or substantial and significant time
with a child
• Hearing and evaluation of factors identified
under section 60CC
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Relocation
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Meaningful relationship vs other factors
The need for shared time to be practicable
The importance of evidence
Again, what is a meaningful relationship
may not be an optimal relationship
• Other factors. There is no “happiness”
principle!
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The Less Adversarial Trial
• Division 12A
• Early judicial intervention
• Some Rules of Evidence do not apply but it
will depend on the nature of the case
• Judicial control
• Involvement of the family consultants – the
Child Responsive Program
• The importance of being able to be heard
11
The ideal
People putting children first
People finding solutions from
knowledge and goodwill
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The sad reality in many matters
before the Family Court
• If parents cannot make the decisions they
should, the court will make those decisions
• Bargaining in the shadow of the law
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Putting Children First
• Objects and principles of the new legislation
• What are the best interests?
• How can we put the right matters before the
court?
• How can we ensure that every different story is
told?
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Every picture tells a story
Every story is different!
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