FL e2 parents and children

Table of Contents

FL e2 parents and children 1

Jurisdiction Act 2

Principles 3

What kind of disputes can be litigated: eg education: Bishop 3

Overview to Pt VII 4

What a parenting order is: 4

Objects and principles from which Pt VII are to be applied: s 60B 5

Paramount consideration when making an order : s 60CA 5

Objects 5

Principles s 60B(2) 6

Determining best interests of Child 6

Framework for determining how order should be made 9

Principle 2#: Determining the paramount consideration / best interest of the child 10

Basic Principles: 10

Factors to take into account: 11

Preferred role of mother: Mathieson 11

Status quo and importance of certainty and stability for children: Mathieson 11

Whether child should be with siblings: Mathieson 11

Factors to not take into account: 11

Parental conduct that doesn’t bear on fitness as parent: Smythe 11

Kidnapping cases: Mathieson; Schenck 11

Relevance of biological parent: Re Evelyn: Rice v Rice: Matthieson 12

Surrogacy cases: Re Evelyn 12

Drug use: Horman 12

When should court refuse all contact?: Horman 13

Abuse (physical and verbal denigration): Patsalou 13

Importance of role models: Patsalou 14

Sexuality: Doyle (consider “attitude to the child” under s 60CC(3)(i) and maturity of child’s parents s 60CC(3)(g)) 14

Dominance/Discipline: Doyle (primary consideration of protection from abuse s 60CC(2)(b) – also note s 60CG family violence) 14

Race ( Aboriginal): B and R (and note s 60CC(3)(h)-(g)) 14

Religion: Paisio (if isolating like in Paisio then no choice + isolating + no contact with rest of family) 15

Allegations (Eg sexual abuse)? Don’t have to be proved on BOP: M v M (consider “risk of abuse” is a primary consideration under s 60CC(2)(b)) 15

Relocation: B v B (child moved with parent); and U v U (parent ordered to stay) 15

Reform 16

When sharing 50/50 is good: McCall v Clark 16

Appendix: Case briefs 16

Bishop 16

Smythe’s Case? 17

Mathieson 18

Shenck’s case – pg 36 – issue of whether parents can do themselves a favour in behaving badly 19

1. Parents and Children

   1. Cases

      1. Bishop

      2. Smythe

      3. Goode

      4. Mathieson

      5. Schenck

      6. Re evelyn

      7. Horman

      8. Patsalou

      9. Doyle

      10. B and R

      11. Paisio

      12. M v M

      13. Brown and Pedersen

      14. B and B

      15. McCall v Calrk

Jurisdiction Act

Parenting:

• Jurisdictional act:

  • FLA applies to a parenting disputes covering all kids

  • Whether or not parents have been married or have married or have separated or lived together

• How does this come about?

  • Using marriage power + state referral.

  • Redrafted to cover all children.

  • Exception – where a child is under care of state welfare law – in Lambert’s case –

• S 69ZK and s 65C

• Who can go to family court and present arguments about children?

  • Either parent, or child, or any person with an interest in child’s care welfare and development.

  • Can’t just be a busybody.

Note new language:

• Govt agreed. 1995 new terminology introduced in FLC.

  • What do Family lawyers talk about now? Instead of access rights, contact.

  • Guardianship replaced with ‘parental responsibility’

  • And what replaced custody – instead the court was able to make a range of orders – including orders for residence, wasn’t quite the same as old custody. Other aspects of decision-making responsibility.

Principles

Intro to custody cases and provisions and look at 1 case.

• Custody cases

  • Dispute between parents

  • Can be no dispute between two parents but the child can also appeal.

  • Name that kids have – can be a dispute about this.

• Case on page 20

What kind of disputes can be litigated: eg education: Bishop

• Court’s power to make parenting orders – extends to orders about “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”: s 64B(2)(i).

• Court’s statuory concern with welfare of child exmpowers it to exercise a far-seeing and over-seeing jurisdiction over children even where orders for custody are made: Bishop

• In case where choices offered by mother/father as so divergent that future will be markedly affected - court did intervene: at bottom of page 20 – ‘in appropriate but very rare cases the question of where a child is to be educated is a proper matter or the court to consider. In my view, this is one of those rare cases, for the choices offered by the father and mother are so divergent that J’s future will be markedly affected dependent upon which choice is preferred by the court. However evidence given that academic standards of school good and ballet school wasn’t academically disastrous: Bishop

64B Meaning of parenting order and related terms

(1) A parenting order is:

(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection(2); or

(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph(a).

(2) A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child;

(d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e) the communication a child is to have with another person or other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order;

(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may...

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