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Law Notes Family Law Notes

Child's Best Interests S60 Notes

Updated Child's Best Interests S60 Notes

Family Law Notes

Family Law

Approximately 97 pages

These notes are very comprehensive and come with a table of contents. It is important to have good notes for this subject as there are many exams. If you are doing the intensive course there is not much time to do the readings and these notes will save you stress and time!...

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Independent Children’s Lawyers

See s 68L and 68LA in process below

The Child’s best interests under s 60CA cases

Parenting order for choice of education provider for the child

Bishop (1981)

  • Husband wanted to restrain wife from enrolling their daughter in ballet school.

  • Treyvaud J found that in appropriate but very rare cases the question of where a child is to be educated is a proper mater for the court to consider. This is one of those rare cases because the choices offered by the mother and father are very different and father has genuine concerns.

  • The Court Counsellor (AKA Family Counsellor) gave evidence that the daughter was an intelligent girl who had a deep feeling for ballet.

  • Court found that the wish of the child to do ballet is a proper maturely held wish. It is important to consider that part of a child’s welfare involves a consideration of the child’s happiness. You don’t automatically give in – children have to learn quite frequently that what is best for them is not necessarily what they want.

One parent takes the children

Smythe (1983)

  • Wife left home, took youngest child with her. Then asked for custody of the elder child from husband. Husband refused and proceedings begun.

  • The TJ interpreted that both parents were good parents and the child’s interests were guaranteed and so the wife leaving was used to choose between both of the parents. The Full Court disagreed strongly with the TJ.

  • The FCFCA found that it had to go back for a new hearing because the evidence was not substantial enough due to the TJ’s erroneous finding.

  • FCFCA: In law, there is no onus on the person seeking custody to justify their withdrawal from cohabitation. There is no support for the proposition that in finely balanced cases, the Court may look to factors other than those relevant to the welfare of the child. 60CA – child’s best interests are the paramount consideration.

  • Proper approach in Jurss:

    • The welfare of a child in any particular case must be determined on the facts.

    • To look for disqualifying factors against the mother is to put the cart before the house.

    • The inquiry is a positive one designed to promote the interests of the child, not to demote the claims of either parent.

  • Factors which have little or no bearing on the welfare of the children should be treated as of minor or no significance when assessed alongside the child’s welfare. They cannot be decisive of the issue, or be relied on to determine what order will best promote the welfare of the child.

  • BEHAVIOUR may be relevant to the extent that a child’s welfare can be affected adversely by the influence and attitude of the parent.

Mathieson (1977)

  • The issue is who should have primary custody of the child, aged 6. She is the youngest of 4 children and living with her Mother – the other three are living with the Husband. The wife had left with the child without disclosing her address and it took 18 months for the case to begin as the husband couldn’t find her. The wife argued that the husband drank too much, frequently away from the home.

  • Fogarty J: An unusual light is case upon the character of the mother – that she would leave with one child without any effort to make contact with the other three. The husband did give prior consent for the wife to have custody the 6 year old but only because he was having a hard time being a single parent of the other three and his consent was reluctant and forced upon him by the pressures at that time. As soon as the husband could bring proceedings for custody, he did. Both parents are capable parents and the wife has a stronger financial position.

  • The child was with the mother 18 months but this happened as a result of events beyond the father’s control. Therefore it is inappropriate to discuss the ‘status quo’ in this case. (reading between the lines the judge likely meant that a status quo in which parents take children without their partner’s consent should not be upheld).

  • But the matter must be determined based on the long term welfare of the child. (the best interests of the child are paramount under s 60CA). He was very concerned that if the child remains with the mother, that the child will grow apart from the other siblings.

  • Findings:

    • PREFERRED ROLE OF MOTHER.

      • It is not a presumption – it is simply a factor to be taken into account.

      • Not to look for factors with the parents – it is a decision to promote the best interests of the child.

    • STATUS QUO

      • No onus exists that one party must show that it was positively advantageous to the children to change the status quo.

      • Child’s interests and welfare are paramount. Status quo may be more detrimental than change.

    • NON SEPARATION OF SIBLINGS

      • The cases in which the welfare of a child requires that a family be divided are very rare.

      • Much authority to support non-separation of children except in special circumstances.

      • Again, no principle, merely another factor.

Schenck (1981)

  • Husband removed the child from Norway and came to Australia without telling the mother. The case took 2 years to come to court and the father argued that the child had now become Australian and therefore it was in his best interests to stay. The mother argued that the child was kidnapped.

  • Full court: Found that the ‘kidnapping’ parent is not disqualified from custody – the welfare of the child is always the paramount consideration. The past behaviour of the parents is important but only so far as it has bearing on the well being of the child. A parent who deliberately removes a child from contact with another parent in circumstances where it was not necessary or reasonable to advance the child’s welfare will generally be viewed as acting contrary to the welfare of the child. The father acted irresponsibly by concealing the child’s whereabouts but the court’s concern is about the child and not simply justice between the parties.

  • The findings favour the father over the mother. The father is more stable and has done a good job caring for the child, while the...

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