#7222 - Final Class - Family Law

Welfare of the child principle alternatives in the articles.

• Mnookin page 82: criticises s 60CA as a principle that judges should use. See page 84. He argued that judges have limited information about the children, have to weigh up multiple issues always and allows judges to decide based on their values. Indeterminatcy – judge never has enough information to decide what is best for the child, the court only has the information that the parties represent that may be biased and this makes it hard to determine the future. Second, when the court discusses best interests it is how difficult it is to compare happiness at one age and happiness at another age. Third, deciding what is best for a child poses questions about values of life itself – religious, educational – what are the primary values of relationships? Where is the judge to look for the set of values to inform the choice what is best for the child? What are the best child rearing strategies?

• Goldstein, Freud and Solnit page 84. One is a sociologist specialising in kids, family lawyer, and daughter of Freud who was a child psychologist. This was in 1973. They used the concept of the psychological parent and the court should locate them to become the day to day parent – the parent most closely bonded to the child. The other idea was this is the end of the court’s job and then the psychological parent should decide who else should have contact with the child.

• Neely page 86. The primary caretaker rule – he was motivated to write the article because he was suspicious about child psychologists and wanted to get rid of the need for expert evidence so that even the lay person can judge based on the test and wanted to make the process more predictable because of the amount of litigation involving children and that some parents use arguments for tactical moves – like when one parent says if you want day to day care of the kids you have to agree to take less property or maintenance or I’ll file a response. Look at who is doing the main day to day jobs for the child and this should be the parent who gets day to day care of the child, the primary caretaker rule.

S 61DA and 65DAA are important. This is what the father’s groups got brought in. They were a powerful lobby who did not get everything they wanted but were successful. They wanted joint decision making responsibility after separation and that there should be a presumption of 50/50 shared care. This was surprising because it is more likely mum does more in the child care. 61DA said the joint parental responsibility will continue unless it has been rebutted by for example violence or abuse or it would not be in the child’s best interests. 65DAA did not go as far as the father’s groups had lobbied for – it says that if the court is going to apply s 61DA presumption then the court must ‘consider’ whether 50/50 time is a good idea or if not if substantial and significant care be a good idea or if not what type of contact is in the best interests of the child under s 65DAA.

Goode case page 24. FCFCA. Explains s 61DA and 65DAA. [43], [44], [65] and [72]-[73] are important. Also McCall on page 78 – relocation case – FCFCA looked at whether under relocation if the court proceeds the same way or do the 2008 reforms make a difference? – [58], [59], [62] and [119].

Kids being shared between the parents: both parents were able to present a positive image of the other parent without denigrating them, when they live in close proximity, splitting up time equally doesn’t always work.

Tucker – children and their suitcases page 90. For your information.

Italian case – not part of course. He started proceedings based on the Hague Convention.

Children’s Cases Program page 135 – became standard form of procedure for parenting disputes in 2006. Called the Less Adversarial Trial now. Yet the judge can decide to have a more adversarial approach in certain cases.

• S 62G talks about family courts. 69ZN sets out guiding principles for the LAT – e.g. court considers needs of the child and the impact proceedings have on the child (very different from adversarial nature) and less formality and legal technicality and form. See your child related proceedings sheet.

Family reports. Read in conjunction with s 62G and Evidence. In the Marriage of McKee (1976), dad was unhappy about something said in court because he did not have a chance to respond – he had to travel several hours to the registry of the court and the counsellor could only spare him ten minutes or so – he thought this was prejudicial and should be excluded from evidence. Court said that with a family report, it is a question of how much weight should be given to it. In practice the court gave zero weight to the family report because it was prepared in an unfair way – so the father kind of won.

Hall (1979) – family reports are meant to assist a judge in forming his or her conclusions and the counsellor does not have the job of the judge because the trial judge has more opportunity to weigh the evidence. The counsellor’s assessment may be based on facts which are later proved to be untrue. It is meant to help the court. Counsellors can make recommendations but not always. Counsellors may be in the witness box to justify what the basis of their recommendations. See the other principles on page 123-124.

Rule 15.02 of the Family Court Rules 2004 makes it clear that kids cannot give evidence in court unless the court gives specific permission – either orally or by affidavit without court consent. This consent is rare. So how does the child’s interests get communicated? The family report is the standard way to get information about what the children think. An independent children’s lawyer often comments on what is already there in the report. Also see 15:04.

Page 93-97 is an article based on research at Sydney university who interviewed kids involved in parenting disputes. The main point was that the majority of the kids wanted the opportunity to say something but didn’t want to be put in the position of making a choice. Read for your own information.

B and B. Couple lived in Cannes and mum wanted to go to Victoria with the boyfriend. We discussed this already. No special law on relocation just apply s 60CA for child’s best interests.

U v U: mother wanted to take kids to India with her. Dad resisted and 5/7 said that the children should stay in Australia with the father and not move. The dissenting judges argued that relocation should be looked at because in most cases, 84%, the mother is the resident parent (2001). Page 76-77.

Watson’s case not as important as Wood (1976). In Wood the FCFC: Mr Justice Watson:

1. When he made orders, he sent a lot of people including the child and parents and other relatives to received child psychologist treatments and to go to psychologists;

   • New law now on this point.

2. He said he didn’t want anyone ruthlessly examined etc and so decided to expense from oral hearing all together and instead all the evidence was provided by affidavit;

   • Full Court found that this was wrong. You can protect people from being asked vexatious questions and that it is important to test evidence and understand the demeanour of the parties. The risk of it being uncontrolled can be managed. It is unfair to cancel this requirement all together.

   • You cannot dispense with oral evidence all together.

3. He heard/learnt that mum in another court was seeking a violence order against dad and he prevailed on mum to discontinue the AVO proceedings in another court so the case could be finished quickly.

   • It was none of Watson J’s business to be concerned with other proceedings – improper for him to persuade the mother not to pursue remedies in the other court.

In the matter of P (a Child) (1993): refers to s 107. Allegations of sexual abuse. Dad always denied sexual abuse of the child that mum alleges. Child is now 5. Dad wanted to defend himself from the allegations and wanted experts to testify on his behalf – which had already happened in the preliminary proceedings. Trial J thought that these arguments were based on natural justice and granted leave under s 102A. Appeal brought by Independent Children’s Lawyer who said this is not the only issue to be considered. Full Court said that the child is very young and already gone through many examinations – it will not advance her welfare – the court must take seriously the obligation to have regard to the welfare of the child and the trial is not strictly adversarial. They had doubts about dad because suddenly he asks for more witnesses before the trial but the real argument was that further examinations would not be good for the child. Over the last 2 years, the child has been subjected to many examinations...