FAMILY LAWPARENTING ORDERS

Peter Swan0407 087 441

swanpg@gmail.com October 2014

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ACKNOWLEDGEMENT

... of the EORA NATION who are the traditional owners of the place we call Sydney.

... and thanks to Marbury Chambers.

… and the CCH Australian Master Family Law Guide (7th Edition to be released end Oct 2014 pre-order at www.cch.com.au )

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… what’s in an order (or plan) ?• The person(s) with whom the child is to live• The time a child is to spend with another parent or person(s)• The allocation of parental responsibility• The consultations required for decisions if there is shared parental

responsibility• The communication a child is to have with another parent or person(s)• The maintenance of the child• Steps to be taken before an application is made to a court for variation of

the Order to take account changing needs or circumstances of a child or party

• The process for resolving disputes about the operation of an Order• Any aspect of the care, welfare or development of a child or any other

aspect of parental responsibilitys64B(2) FLA [and s63C92) for parenting plans)

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ESSENTIAL BASICS

• THE LEGISLATION• PARENTING PLANS – DESCRIPTION, PRO’S AND

CON’S, CONSENT

• PARENTING ORDERS BY CONSENT – PROCESS, PROCEDURE, OPERATION & ENFORCEMENT,

• CONTEST FOR PARENTING ORDERS – THE FAMILY REPORT, THE ICL, EFFECT & FINALITY & APPEAL

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THE LEGISLATION

FAMILY LAW ACT 1975 (Cwth) PART VII + REGS 1984

FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) ACT 2006

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… objects and principles of Pt VII

s60B Objects of Part and principles underlying it

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

… the benefit of meaningful involvement of both parents … protection from harm … “adequate” and “proper” parenting to achieve “full potential” of child … ensure parents fulfil all duties … and culture

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… for Indigenous children this means

s60B(3) 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.

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PARENTING PLANS

• A parenting plan is a written agreement that is dated and signed by both parties.

• There is no standard form of preparation, making it very easy to execute.

• Not enforceable.• The court must consider the terms of the latest

parenting plan when making parenting orders. Court is not bound by the terms of the parenting plan.

• Issue of duress ... s63C(1A)• s63C(2) the areas of operation (same as Slide 3)

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“old” Registered Parenting Plans

• See s63DB• Pre 2003 (so will essentially be relevant until

about 2020)• Cannot be varied simply by written agreement

but may be revoked• … but must be registered as a revocation s63E

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… the Court’s default view :

s63B Parents encouraged to reach agreement The parents of a child are encouraged: (a) to agree about matters concerning the child; and (b) to take responsibility for their parenting arrangements and for resolving parental conflict; and (c) to use the legal system as a last resort rather than a first resort; and (d) to minimise the possibility of present and future conflict by using or reaching an agreement; and (e) in reaching their agreement, to regard the best interests of the child as the paramount consideration.

• Note: Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.

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PARAMOUNTCY PRINCIPLE

“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”

s 60CA Family Law Act 1975(also cross-ref s65AA)

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CHILD’S BEST INTERESTS

“best interests” are determined by reference to primary and additional considerations as detailed in S60CC

Primary = meaningful parental rel’ship + protection from harmAdditional = see s60CC(3)

**NOTE PRACTITIONER’S (and other’s) OBLIGATIONS s60D**

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“additional” s60CC(3)

• Relevant child views + maturity• Currency of “care” relationships• Parental participation (or lack) spend time, decision-making,

communication• Fulfilment (or failure) to meet parental obligations• Changes (and effects of changes) in child’s circumstances• Practical difficulties logistics and/or expense• Capacity of care givers to meet “additional” issues• Indigeneity• Family violence / abuse• …… and any other factor

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… who can apply ??

• Either or both of child’s parents• The child• A grandparent of the child• Any other person concerned with the care,

welfare or development of the childs65C FLA

In force until child turns 18, marries, enters de facto rel’ship or adopted. s65H and s65J

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PARENTAL RESPONSIBILTY

s61B 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.

[NOTE EXCEPTION REGARDING CHANGE OF NAME UNDER BDM ACT NSW] .. discretion of BDM Registrar

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Presumption of shared parental responsibility

s61DA Presumption of equal shared parental responsibility when making parenting orders

s61DB Application of presumption of equal shared parental responsibility after interim parenting order made (… court essentially must disregard any interim order re allocation of responsibility)

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s61F Application to Aboriginal or Torres Strait Islander children

…. the court must have regard to any kinship obligations, and child rearing practices, of the ‑child’s Aboriginal or Torres Strait Islander culture.

(but this is not elaborated)

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CONSENT ORDERS

• http://www.familylawcourts.gov.au

• PRESCRIBED BROCHURES “before you file” and “marriage, families and separation” and OTHER INFO “parenting orders” and “Indigenous Families”

• PRE COURT REQUIREMENTS – STATUTORY (mediation)• COST • FULL and FRANK DISCLOSURE and PRACTITIONER’S UNDERTAKING

and COMPLETING THE PAPERWORK (25 pages)• STATEMENT OF TRUTH• STATEMENT OF INDEPENDENT LEGAL ADVICE• FILING LOCAL COURT vs FCC

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CONTESTED MATTERS

• ADVICE (obligations), COSTS , and INITIATING APPLICATION PROCESS

• MEDIATION and s 60I CERTIFICATE • TIMETABLE• FAMILY CONSULTANT REPORT• ICL s86L and s68LA• MATTER STOOD DOWN & VEXACIOUS PARENTS• ANGRY PARENTS & PRACTITIONER LIABILITY s63DA

(Parenting Plan) and s60D (Best interests of child)

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FAMILY VIOLENCE/CHILD ABUSE ISSUES

• s60CG – the court must consider• PROCEDURAL MANIPULATION – notices of alleged

Family Violence• NO NEED FOR MEDIATION and s 60I CERTIFICATE• SOLE PARENTAL RESPONSIBILITY ?? Need to rebut

the presumption• “NO CONTACT” ORDERS• SUPERVISED “SPEND TIME WITH” ORDERS …

practicalities of contact centres availability & access

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INDIGENOUS ISSUES

• KINSHIP “PARENTING” and CULTURAL SHARING OF PARENTAL RESPONSIBILITY s61F

• FCC ACCESS STRATEGIES UNDER TRIAL (La Perouse Community Health Centre)

• CULTURAL RECOGNITION & JUDICIAL REQUIREMENTS

• EVIDENTIARY ISSUES (including RELIABILITY/COMPETENCY) & PROCEDURAL COMPLIANCE

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INDIGENOUS ISSUES

• CLARITY (and ACCESS) for CLIENTS (including evidence supporting “person of interest in the welfare ...” and PRACTICALITIES OF MEETING COURT TIMETABLE) … community Elder involvement … finding your client

• CULTURAL RELUCTANCE (HISTORICALLY DOCS/FACS) vs CULTURAL NORMS

• COMING WITH CLEAN HANDS (FV/DV/CSA)• COALFACE FRUSTRATION (PRACTITIONER vs CLIENT

vs COURT vs COMPLIANCE)

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