#7221 - Parenting Orders Vii Fla - Family Law

• ‘Marriage Power’ and state reference of power gives jurisdiction.

• Minor exception is for state wards. See Lambert.

• 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.

• 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.

1. The objects of this Part are to ensure that the best interests of children are met by:

1. 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

2. protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

4. 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):

1. 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

2. 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

3. parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

4. parents should agree about the future parenting of their children; and

5. 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:

1. to maintain a connection with that culture; and

2. to have the support, opportunity and encouragement necessary:

   1. to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   2. 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 20November 1989.

In deciding whether to make a particularparenting orderin relation to achild, acourtmust regard the bestinterestsof thechildas the paramount consideration.

Determiningchild's bestinterests

1. Subject to subsection(5), in determining what is in thechild's bestinterests, thecourtmust consider the matters set out in subsections(2) and (3).

Primary considerations

2. The primary considerations are:

1. the benefit to thechildof having a meaningful relationship with both of thechild'sparents; and

2. the need to protect thechildfrom physical or psychological harm from being subjected to, or exposed to,abuse, neglect orfamily 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:

   1. 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;

   2. the nature of the relationship of the child with:

      1. each of the child's parents; and

      2. other persons (including any grandparent or other relative of the child);

   3. the extent to which each of the child's parents has taken, or failed to take, the opportunity:

      1. to participate in making decisions about major long-term issues in relation to the child; and

      2. to spend time with the child; and

      3. 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;

4. the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   1. either of his or her parents; or

   2. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

5. 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;

6. the capacity of:

   1. each of the child's parents; and

   2. 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;

7. 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;

8. if the child is an Aboriginal child or a Torres Strait Islander child:

   1. 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

   2. the likely impact any proposed parenting order under this Part will have on that right;

9. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

10. any family violence involving the child or a member of the child's family;

11. 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:

    1. the nature of the order;

    2. the circumstances in which the order was made;

    3. any evidence admitted in proceedings for the order;

    4. any findings made by the court in, or in proceedings for, the order;

    5. any other relevant matter;

12. 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;

13. 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:

1. to maintain a connection with that culture; and

2. to have the support, opportunity and encouragement necessary:

   1. to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   2. to develop a positive appreciation of that culture.

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:

   1. by having regard to anything contained in a report given to the court under subsection 62G(2); or

   2. by making an order under section68L for the child's interests in the proceedings to be independently represented by a lawyer; or

   3. 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...