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Parenting Orders Vii Fla Notes

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This is an extract of our Parenting Orders Vii Fla 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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Parenting orders VII FLA Jurisdiction in parenting disputes

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'Marriage Power' and state reference of power gives jurisdiction.

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Minor exception is for state wards. See Lambert.

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Standing: a child could theoretically start proceedings under s 65C, a parent, child or grandparent or anyone with an interest in the care or welfare of the child can apply for parenting orders.

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Family Law Council set up under the FLA to make inquiries and make reports. They had some objections to custody and guardianship terminology. Guardians make the large decisions about the child's life like medical treatment, consent to underage marriage, religion, education, passports, represents the child (like for legal purposes etc) and so thought to be major decisions. Custody is the care or control of a child on a day to day basis. Access is the right to see the child - visitation rights or have child come and see you - usually involves physical contact but depending on the circumstances it could be just sending documents like school reports or phone calls to the child etc. The Family Law Council objected to some of these traditional terms because they made children sound like property, which they did not believe was positive (see volume III beginning of it). They wanted to change the terminology to change the way parents treat children and page one found that the language is important to promote different attitudes. 'Access' was replaced by contact. 'Custody' was not replaced but you can make orders about particular types of decision making and orders in relation to residence.

Objects of Part VII - Children Section 60B Objects of Part VII and basic principles 1) The objects of this Part are to ensure that the best interests of children are met by: a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. 2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests): a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and d) parents should agree about the future parenting of their children; and

e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). 3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: a) to maintain a connection with that culture; and b) to have the support, opportunity and encouragement necessary: i. to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and ii. to develop a positive appreciation of that culture. 4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Child's best interest: Section 60CA Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC - maters to be considered in determining what is in a child's best interests Determining child's best interests 1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3). Primary considerations 2) The primary considerations are: a) the benefit to the child of having a meaningful relationship with both of the child's parents; and b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). Additional considerations 3) Additional considerations are: a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; b) the nature of the relationship of the child with: i. each of the child's parents; and ii. other persons (including any grandparent or other relative of the child); c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: i. to participate in making decisions about major long-term issues in relation to the child; and ii. to spend time with the child; and iii. to communicate with the child; (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: i. either of his or her parents; or

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any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; f) the capacity of: i. each of the child's parents; and ii. any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; h) if the child is an Aboriginal child or a Torres Strait Islander child: i. the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and ii. the likely impact any proposed parenting order under this Part will have on that right; i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; j) any family violence involving the child or a member of the child's family; k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: i. the nature of the order; ii. the circumstances in which the order was made; iii. any evidence admitted in proceedings for the order; iv. any findings made by the court in, or in proceedings for, the order; v. any other relevant matter; l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; m) any other fact or circumstance that the court thinks is relevant. Consent orders 5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3). Right to enjoy Aboriginal or Torres Strait Islander culture (6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: a) to maintain a connection with that culture; and b) to have the support, opportunity and encouragement necessary: i. to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and ii. to develop a positive appreciation of that culture.

Children's wishes Section 60CD - how the views of a child are expressed

How the views of a child are expressed

1) Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child. 2) The court may inform itself of views expressed by a child: a. by having regard to anything contained in a report given to the court under subsection 62G(2); or b. by making an order under section 68L for the child's interests in the proceedings to be independently represented by a lawyer; or c. subject to the applicable Rules of Court, by such other means as the court thinks appropriate. Note 1: Paragraph (a)--subsection 62G(3A) generally requires the person giving the report to ascertain the child's views and include those views in the report. Note 2: Paragraph (b)--paragraph 68LA(5)(b) requires the independent children's lawyer for the child to ensure that the child's views are fully put before the court. Section 60CE Child not required to express views by court or any person.

Family violence Section 60CF Informing court of relevant family violence orders 1) If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order. 2) If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that person may inform the court of the family violence order. 3) Failure to inform the court of the family violence order does not affect the validity of any order made by the court. Section 60CG Court to consider risk of family violence 1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order: a) is consistent with any family violence order; and b) does not expose a person to an unacceptable risk of family violence. 2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Family dispute resolution requirement prior to application for Part VII order Section 60I Attending family dispute resolution before applying for Part VII order Object of this section 1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order ) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for. (7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order. Certificate by family dispute resolution practitioner (8) A family dispute resolution practitioner may give one of these kinds of certificates to a person:

(a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person's failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend; (aa) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution; (b) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues; (c) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues; (d) a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution. Note: When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117). Exception (9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if: a) the applicant is applying for the order: i. to be made with the consent of all the parties to the proceedings; or ii. in response to an application that another party to the proceedings has made for a Part VII order; or b) the court is satisfied that there are reasonable grounds to believe that: i. there has been abuse of the child by one of the parties to the proceedings; or ii. there would be a risk of abuse of the child if there were to be a delay in applying for the order; or iii. there has been family violence by one of the parties to the proceedings; or iv. there is a risk of family violence by one of the parties to the proceedings; or c) all the following conditions are satisfied: i. the application is made in relation to a particular issue; ii. a Part VII order has been made in relation to that issue within the period of 12 months before the application is made; iii. the application is made in relation to a contravention of the order by a person; iv. the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or d) the application is made in circumstances of urgency; or

e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or f) other circumstances specified in the regulations are satisfied. Referral to family dispute resolution when exception applies (10) If: a) a person applies for a Part VII order; and b) the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and subsection (7) does not apply to the application because of subsection (9); c) the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues. Section 65F General requirements for counselling before parenting order made (2) Subject to subsection (3), a court must not make a parenting order in relation to a child unless: a) the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or b) the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a). (3) Subsection (2) does not apply to the making of a parenting order if: a) it is made with the consent of all the parties to the proceedings; or b) it is an order until further order. (4) In this section: "proceedings for a parenting order" includes: a) proceedings for the enforcement of a parenting order; and b) any other proceedings in which a contravention of a parenting order is alleged. Section 60J Family dispute resolution not attended because of child abuse or family violence Subsections 60I(7)-(12) which apply to applications for Part VII orders do not apply if the court is satisfied there are reasonable grounds to believe that: i. there has been abuse of the child by one of the parties to the proceedings; or ii. there has been family violence by one of the parties to the proceedings; iii. a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.

Parental responsibility Section 61B - Meaning of parental responsibility In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C Each parent has parental responsibility (subject to court orders) 1) Each of the parents of a child who is not 18 has parental responsibility for the child. Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

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