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Final Class Notes

Law Notes > Family Law Notes

This is an extract of our Final Class document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

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Final class

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Welfare of the child principle alternatives in the articles. o 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?
o 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. o 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.

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