#7220 - Second Last Class - Family Law

Mathieson: talks about some of the arguments commonly talked about and used in parenting disputes on page 29. Wife left with the youngest child out of three kids, without leaving her address, and took a while for the husband to find her, 18 months for the case to be heard. The child was only 6. She claimed that the father made her leave home, his drinking and frequently away from home. There was a large age gap between the younger and older children. The best interests of the child are paramount under s 60CA. Father argued that siblings should be kept together. Continuity and stability is good for kids – the status quo. Reuniting the kids of the family is also important. There are no legal rules or legal presumptions about status quo, mothers or siblings - the only legal rule is the best interests of the child is paramount under s 60CA. Refers to a case called Arabi on page 32 (check on this). Both parents displayed parenting capacity. Page 34 the judge says something curious in the second column – in this case there might be some dispute about where the true status quo exists in order to determine the matter at all. Mum attained an advantage taking the child secretly and everything that happened since is because of things beyond the father’s control. The 18 months has gone by because of circumstances beyond the father’s control. It is inappropriate to talk about status quo in a situation of this type (you do not want parents to take children without consent or knowledge of the other partner – this is reading between the lines of the case). Non-seperation of the children was the argument favoured by the judge.

Schenck: Father took the child when it was one year old from their home in Norway and came to Australia, without telling mum. Took 2 years to come to court and father argued that the child had become Australian and now it is in his best interest to stay. The mum argued that the child was ‘kidnapped.’ The justice of the situation as between the parents was found to be subordinate – it is the interests of the child. The father acted irresponsibly, insensitively, and compounded that by concealing the whereabouts of the child. The court’s concern is not justice between the parties – it is the child and his welfare. The findings favour the father over the mother in how he has cared for the child in the past. Proposals for the future favour the father who is more stable, and the mother is more uncertain, even if this was partially due to him taking the child. Nevertheless, welfare of the child is paramount. Father gets the child. [note: taking a child may not always be for selfish reasons – today there would be an international convention that would be relevant like Hague Convention on the Abduction of Children to which Australia and Norway are parties].

In the Marriage of Horman (1976): The parents were disputing how the kids were being brought up. Both parents had different life styles. The child is 7 or 8 and has a good relationship with both parents. Who would be the best day to day parent and the arrangements for contact with the other parent were at issue. The husband had wacky religious views, but it is not that which made the court give custody to the wife; It was that he wanted them to live in a hut in remote circumstances, without any real financial support without intention to work and that he will continue to indulge in drugs – this would endanger the welfare of the child. The choice that the TJ made was it was better for the child to stay in suburban Brisbane, rather than the uncertainty of up in the hills. Contact was agreed upon though and the terms and conditions on the undertakings (meant to prevent dangers occurring to the child) were that they could not do drugs in the child’s presence and the dad had to surrender his passport to the registrar of the court.

In the Marriage of Patsalou: The husband admitted to domestic violence against the child but denied ever being violent to the child. The parents had joint parental responsibility (used to be called joint custody). Day to day care was given to the mother – i.e. contact. Dad appealed, wanting to be the day to day parent. Dad did not deny he had been violent to the mother. The making of derogatory remarks by one party to another and inflicting violence on one party by another are relevant for child custody and any person who indulges in such behaviour is a poor role model for children and their custodial suitability will be in doubt. Thus the child’s best interest, was best promoted by the mother. (could have forced dad to go to a parenting course or anger management course or family counselling etc).

Paisio: The court said there may be many paths to the top of the mountain – matters of religious faith are none of the court’s business. Religion is not relevant unless under s 60CA, they are about the child’s best interests. The mother wanted the child to live in Tasmania with Jehova’s witness and the father objected. Thought perhaps being raised in this community would reduce the child’s freedom of choice of religion. There was also the idea of isolation because the community tried to restrict their social contacts to other members of the community. Found this would isolate the child from mainstream society and the rest of her family – siblings and father. The full court didn’t disagree with the TJ. In favour of mum’s proposals was that the child was very happy being with the mum in the religious community and she wanted to stay where she wants – the child’s wishes do not bind the court but it is important to their best interests. Custody to father, not on religious grounds;

• Relationship with father,

• Other siblings,

• Father would give her alternative choices of ways of life which will give her the opportunity to measure those against her current faith - when she comes of age she can make a free choice – probably one of the strongest rights of a human being in our society.

In the Marriage of B and R page 53: there were arguments about issues on the evidence. On appeal, the issue was that the TJ has screwed up so fundamentally, that relevant evidence on certain matters had not been collected and so the full court could not substitute its’ view and there needs to be a fresh hearing. Mum had contact with the child but day to day care was with the father, living in Tasmania. The TJ thought that heavy drinking and violence causing the mum and dad to divorce. Mother argued that she was aboriginal and should get care of the kid so it would have access to its’ culture. Article 30 of the UN Convention on the Rights of the Child says that kids have the right to grow up with access to their culture. The TJ thought it unfair to argue culture. Full court found that it was misplaced to talk about anti discrimination law. The full court did not say what conclusion should have been reached, but that it shouldn’t have excluded evidence of culture which may have been relevant. Page 55 at the bottom 2^nd column found that Aboriginals can have negative consequences not growing up in their culture and the UN Convention on the Rights of the Child. They say it is not just that Aboriginal kids should be encouraged to learn about their culture but the court should be aware of the unique history of Aboriginals – it is far more than the importance of simply Aboriginal culture and the historical influence is important. It is fundamentally wrong in principle. Page 58 first column looks at some research. S 68L and 68LA is for independent lawyers. This case is one where it would be benefited by an independent lawyer. S 60CC is a whole long list of what may be relevant to the child’s interests and under (3)(h) specifically deals with Aboriginals and 60B(2) (e) and (3) about culture and Aboriginals and see for your information 60CC(3)(g).

Doyle: homosexual case. Older child already with the father and boyfriend in Perth and the younger child wanted to live with father too and move away from Tasmania and mum. Homosexuality is valid if relevant to the parenting abilities or the welfare of the child and so the court will take into account the parent’s way of life. He adopted a random 8 point approach from L and L:

• Whether children raised by their parent may themselves become homosexual.

• Whether the child will be stigmatised.

• Whether a homosexual parent will show the same love and responsibility as a heterosexual.

• Whether they will give balanced sex education

• Whether children should be aware of parent’s sexual preferences.

• Whether children need a parent of the same sex to model on.

• Attitudes toward religion.

• Being teased is part of life and growing up. You cannot organise things so that kids never get teased. Learning to cope with such things is a part of growing up.

• When the wife speaks of the husband’s values it is relevant to compare them with the attitudes of the wife’s boyfriend, M. M has many offences and is dominant and is not opposed to physically disciplining the child. Wife has no qualms about his attitude but judge found that M may be pushing the mother into pursuing this litigation and is dominant over her.

• Child has strong wish to live with father and sibling. It is not what is fair for the parents but what is best for the child.

There was a case in Sicily and mum meets the new preschool teacher and then found out that one kid looked the same in the class as the mum but another kid was the mum’s child. They were born in the same hospital but were swapped by accident. These children were raised by the wrong parents 3 years. What would happen...