Legal Info - Children2

7/29/2019 Legal Info - Children2

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DE FACTO

- Definition A de facto relationship is a relationship between twoadult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

Property (Relationships) Act 1984

- Under the family law act 1975 section 4AA, a de facto relationship can exist between

two people of the same sex and a de facto family is provided with a lot of the

privileges married couples have, given they can prove they have a bona fide

relationship.

- Since March 2009, due to the Same Sex Relationships (Equal Treatment in

Commonwealth Laws General Law Reform) Act 2008, same sex de facto couples

are now treated under the Family Law Act 1975, as de facto partners. Therefore, if at

any time, the party had a child they too will be included as the partners child

Without the court:

- A property settlement or a financial separation agreement must be finalised within

twelve months following the separation. This achieves a result without court

intervention (under s 90C and s 90UD of the Family Law Act 1975. The benefits of

settling it without the court include:

o The parties get to make their own choices

o It significantly reduces financial and emotional costso More open communication conflict resolution procedure

o Much easier to move forward, no ongoing, lengthy court process

With the court:

- The court may be involved if the duration of the court was at least two years children

are involved or one party contributed much more than the other.

- The court will judge based on the contributions made to the marriage by each party,

such as in Powell v Suprenscia, where a de facto couple took their separation to the

court and Suprenscia was paid a significantly larger amount due to the fact she

contributed much more to the relationship than Powell.

- The court may also consider future needs of each party

- The court may adjourn proceedings if the financial circumstances are about to

change and it would be wiser to sort out at a future date

- Maintenance Under the Family Law Act 1975, a spouse qualifies if:

o They are caring for a child under 18

o They cannot work due to physical or mental incapacity

- They must claim before two years elapse since the end of the relationship
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CHILDREN and de factos

- Amendments to the Status of Children Act 1996 granted lesbian couples the same

parental rights of heterosexual couples. If one party gives birth to a baby due

artificial conception procedures, both parties are considered the babys parents.

- Sperm donors are not recognised as fathers

- Where a sperm donor/surrogate has been used, there are only two ways that the

intended parents can legally formalise their parental rights. These are by:

o adopting the child - which can be a long and expensive process; or

o obtaining parenting orders from the Family Court, which can make orders

that a particular person is legally the parent of a child and therefore has

parental responsibility for that child.

- Although the rights of lesbian parents are now protected by law, it is also a good

idea for lesbian couples to obtain parenting orders to protect both partners roles as

parentsparticularly the partner who is not the childs biological mother. A birth

certificate only records the names of a childs parents at the date of birth. It does not

prove who has parental responsibility for the child on a long term basis.

- Parenting Orders by Consent will ensure both of you are legally recognised with

equal parental responsibility for making long term decisions about the care, welfare

and development of your child.

- A set of Consent Orders will also ensure you are both legally recognised by schools,

treating practitioners, sporting clubs and other institutions as having rights in

decision-making for your child.

- If you and your partner separate, and you cannot agree on parenting arrangements,

Consent Orders will ensure the Court recognises you both have parental

responsibility for your child]

- Re Patrick(2002) A homosexual man donated his sperm to a lesbian couple with

the impression that he would receive regular contact with the child. The Family

Court determined, under the Family Law Act 1975 that the sperm donor is not

considered the father in this situation. However the court granted him contact

anyway, as court verdicts are made on a case by case basis.

- Re Mark (2003) Through a surrogacy agreement in America, a homosexual couple

had a baby. One of the parties to the relationship, Mr X, was also the biological

parent of the child. They applied to the Family Court for recognition of parental

rights. The couple were granted it based on best interest of the child, and were

given a consent order under the Family Law Act 1975.


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Family dispute resolution- negotiation, family dispute resolution, mediation, arbitration, collaborative law

and child-inclusive processes.If there is a high level of emotional conflict or hostility, a power imbalance ordomestic violence, some of these methods may be inappropriate.

Family Relationship Centres - people can have three hours of free advice and

assistance about their separation issues. You may be referred for reconciliation or

separation counselling or for mediation. In most cases, it will be necessary for both

parties to attend at family dispute resolution or mediation with a registered family

dispute resolution practitionerbefore they can start proceedings for parenting orders.

Often it is useful to reach a short-term or interim agreement on matters such as

occupation of the home, where the children will live, how much time children will

spend with the other parent and child support.

What are my responsibilities as a separated or divorced parent?

Married or not, responsibility to ensure children receive adequate and proper

parenting. All parents have the responsibility to promote the best interests of their

children. Under the Family Law Act, parental responsibility for children does not end

with separation or divorce, but continues until each child reaches at least the age of

18.

Except when a child is at risk of abuse or neglect or it is contrary to a childs best

interests, children have the right to live or spend time with both their parents and

other people significant to their care, welfare and development, such as

grandparents.

Parents should try to agree about matters concerning their children. They share the

responsibilities for making decisions about major long-term issues. When an

agreement is reached it can be made legally binding by consent orders. Some

parents choose to use parenting plans which are less formal. Court will makeparenting orders on application if you cant reach an agreement.

Now you may seek parenting or shared parenting orders, including orders dealing

with:

The person or persons with whom a child is to live.

The time a child is to spend with the other parent.

The allocation of parental responsibility.

Consultation between parties where there is shared parental responsibility.

How to vary orders as the needs of the children or parents change.
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Best interests of the child

Court presumes that it is in the best interests of the child to have equal shared

parental responsibility, but not necessarily equal parenting time. If there has been

abuse or violence seen by or involving the child, or there are other reasons that it is

not in the best interests of the child, then the Court should not order equal shared

parental responsibility.

If equal time is not appropriate, the Court must consider if substantial and significant

time would be in the childs best interests. The Court has regard to a list of primary

and additional considerations to determine what is in the childs best interests.

The primary considerations are the right of children to know their parents and to be

protected from harm. What is in the best interests of the child is the paramount

consideration for the Court.

The additional considerations include (Defined by Family Law Amendment (Shared

Parental Responsibility) Act 2006):

The views of the child and the weight which the Court should give to their views,

depending on age, maturity etc.

The nature of the relationship of the child with each parent.

The willingness and ability of each parent to encourage and facilitate the other

parents involvement with the child.

How any change might affect the child.

Practical difficulties and expense in seeing a child.

The capacity of each party to provide for the needs, including the emotional and

intellectual needs of the child.

The maturity, sex, life-style and cultural background of the child and parents,

including the right to enjoy their culture.

The attitude to the child and responsibilities of parenthood shown by the parents.

Any family violence involving the child or a member of the family.


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How to change parenting arrangements

Once parenting orders are made, the Court will only change those orders if it is satisfied that there

has been a significant change in circumstances to justify the orders being varied. Normally it is easier

to change the provisions of a parenting plan. However, parenting plans do not have the same

enforceability if they are breached.

The Court often requires parents to meet with a family consultant to try to reach agreement on orders

to be made. Court hearings in childrens matters are less adversarial than they previously were. Many

cases are resolved once a family report is prepared by a family consultant or counsellor. Often the

Court will appoint an independent childrens lawyer to represent the child.

.

Apprehended Domestic Violence Orders

If violence, threats or verbal abuse occur in your relationship, it may be necessary to obtain an

Apprehended Domestic Violence Order from a Local Court. In serious or urgent cases, a police officer

may seek the order on your behalf. If you are afraid of your partner or a family member, tell your

Solicitor who will advise you how to obtain an order to protect yourself and your family.

How will a solicitor help me?

Your solicitor can:

Advise you of your legal rights.

Advise you if you may be entitled to Legal Aid.

Tell you which method of primary dispute resolution may be best for your case.

Assist you to negotiate parenting orders or refer you to a counsellor or mediator.

Check any agreement you make with your spouse on shared parental responsibility for children.

If you must apply to the Court, prepare documents in support of your application to establish that it

is in the best interests of the children for the Court to make the orders you seek.

Interview your witnesses and prepare affidavits of their evidence.

Present your case or engage a barrister to represent you in Court if it must go to a hearing.

Help you to enforce or consider a variation of your parenting orders.

Collaborative lawyers will help you to resolve all issues without going to Court.

The Best Interests of the Child

The principle of 'the best interests of the child' is set out in the UnitedNationsConvention on the Rights of the Child(CRC).

The CRC was adopted in 1989 and ratified by Australia in December 1990. It makes thebest interests of the child at least 'a primary consideration', and sometimes paramount,in actions and decisions concerning children. The principle of the best interests of the
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child is one of the fundamental principles of the CRC underpinning the interpretation ofall children's rights and freedoms.

The CRC defines 'children' as everyone under 18 years.

This Brief provides information on:

Thesources of the principleof the best interests of the child

Which actions are affected?

Whose actions are covered?

What are the child's best interests?

Are other considerations permitted?

Best interests in Australian law

Practitioner checklist

Select bibliography

Cases Websites

The sources of the principleof the best interests of the childGenerally the best interests of the child are a primary consideration in all actionsconcerning children.

A primary consideration - article 3.1In all actions concerning children, whether undertaken by public or private social welfareinstitutions, courts of law, administrative authorities or legislative bodies, the bestinterests of the childshall be a primary consideration.

In particular cases best interests may be the paramount consideration.

Child protection and custody - article 9.1States Parties shall ensure that a child shall not be separated from his or her parentsagainst their will, except when competent authorities subject to judicial review determine,in accordance with applicable law and procedures, that such separation is necessaryforthe best interests of the child. Such determination may be necessary in a particularcase such as one involving abuse or neglect of the child by the parents, or one wherethe parents are living separately and a decision must be made as to the child's place ofresidence

Continuing contact with one or both parents - article 9.3States Parties shall respect the right of the child who is separated from one or bothparents to maintain personal relations and direct contact with both parents on a regularbasis, except if it is contrary tothe child's best interests.

Adoption - article 21States Parties that recognize and/or permit the system of adoption shall ensure thatthebest interests of the childshall be the paramount consideration.

Parental decision-making - article 18.1States Parties shall use their best efforts to ensure recognition of the principle that bothparents have common responsibilities for the upbringing and development of the child.
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Parents or, as the case may be, legal guardians, have the primary responsibility for theupbringing and development of the child. Thebest interests of the childwill be theirbasic concern.

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Which actions are affected?Article 3.1 applies widely to all actions concerning children. It is not confined to actionsand decisions concerning the rights and freedoms set out in the CRC.

An action 'concerns' children not only when it is directly about them, or in reference orrelation to them, but also when it regards or touches them. Even if the child is not theobject of the decision, the principle applies if the decision affects her or him.

'A broad reading of the provisions in Art. 3, one which gives to the word "concerning" awide-ranging application, is more likely to achieve the objects of the convention',

according to Mason CJ and Deane J in Ah Hin Teoh. The decision at issue in that caseconcerned a father's deportation. The High Court held the authorities ought to havetaken into account the effects on the children of their father's deportation.

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Whose actions are covered?Article 3.1 covers decision-making by all three arms of government: legislative,administrative and judicial. It also governs decisions by public social welfare institutions.Government decision-making relating to custody, residence, contact, care and protectionmust make children's best interests the paramount consideration. In other decision-making the best interests of the child, or of children generally, must be a primaryconsideration.

Private social welfare organisations are also required to take the best interests ofchildren into account (article 3.1).

Parents' decision-making in the course of the upbringing and development of theirchildren must make the children's best interests the basic concern as set out in article18.1.

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What are the child's best interests?The CRC does not explicitly define a child's best interests. The term is 'imprecise, but nomore so than the "welfare of the child" and many other concepts with which the courtsmust grapple', said the High Court majority in Marion's Case.

Even so, some points are very clear from the CRC.

1. In the case of actions and decisions affecting an individual child, it is the best

interests of that individual child which must be taken into account.

2. It is in a child's best interests to enjoy the rights and freedoms set out in the CRC.For example, it is in children's best interests to develop respect for human rights
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and for other cultures (article 29.1(b) and (c)). It is in a child's best interests to

maintain contact with both parents in most circumstances (article 9.3).

3. It is in the best interests of Indigenous children to be raised in the Indigenous

community (articles 5, 8.2 and 30).

4. A child capable of forming a view on his or her best interests must be able to give

it freely and it must be taken into account (article 12).

5. Parents have primary decision-making responsibility on behalf of their children

(articles 5 and 18.1) but, if they fail to make the child's best interests a basic

concern, the State may intervene to protect those interests (see article 9.1 for

example).

In Australia an example of a decision taken out of parents' hands altogether is whetherto have a child with a disability sterilised. In Marion's Casethe High Court stipulated thatsterilisation is a 'step of last resort'.

In the case of a young woman, 'regard will be had to the various measures nowavailable for menstrual management and the prevention of pregnancy'. '[I]f authorisationis given, it will not be on account of the convenience of sterilisation as a contraceptivemeasure, but because it is necessary to enable her to lead a life in keeping with herneeds and capacities.'

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Are other considerations permitted?Other considerations are clearly permitted by the general principle.

Article 3.1 provides for a child's interests to be amongthe first considerations rather thanrequiring them to be the first considered or favoured. There are circumstances in whichthe community or other parties might have equal or even superior interests so that achild's interests may not prevail.

By providing that the best interests of the child are 'a primary consideration' ratherthan theprimary or the paramountconsideration, article 3.1 allows decision-makers tobalance the best interests of the child against 'equally weighty' primary considerations oftheir own choosing, such as religious or economic considerations.

But this discretion is restricted. The Committee on the Rights of the Child has often

advised governments that they should ensure spending decisions are made with dueregard for the best interests of children, particularly those from vulnerable groups.

As summarised by Mason CJ and Deane J in Ah Hin Teoh, '[A] decision-maker with aneye to the principle enshrined in the CRC would be looking to the best interests of thechildren as a primary consideration, asking whether the force of any other considerationoutweighed it'.

Where the CRC makes the child's best interests the paramount consideration it would bevery rare that any other could justify setting aside those interests.

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Best interests in Australian lawThe CRC establishes minimum standards. Where Australian domestic law sets a higherstandard it must not be diluted (article 41). If, for example, the best interests of the childare the paramount consideration when the CRC only requires primary consideration, thehigher standard must be retained.

The CRC is not directly implemented in Australia; it is not part of Australian law.

But the CRC is scheduled to the Human Rights and Equal Opportunity Commission Act1986(Cth). This gives the Commission power to investigate complaints that the CRCrights have been violated by or on behalf of the Commonwealth or a Commonwealthagency but only in the exercise of a discretion or in abuse of power.

Where legislation requires the right of the child to be set aside, the Commission can onlyadvise the Parliament that the legislation should be amended.Human rights complaints which cannot be resolved by conciliation do not proceed to a

hearing and determination but may, after appropriate inquiry, be made the subject of areport to the Attorney-General for tabling in Parliament. The Commission has noauthority over the courts.

The High Court has imposed an obligation to consider human rights in cases ofdiscretionary administrative decision-making. In Ah Hin Teohthe majority held that,although the CRC has not been implemented in Australian law, its ratification byAustralia had given rise to a legitimate expectation that decision-makers would take itsprovisions into account. Where legislation permits a discretion, that discretion should beexercised in conformity with Australia's international treaty obligations.

It is also now accepted 'that a statute is to be interpreted and applied, as far as itslanguage permits, so that it is in conformity and not in conflict with the established rulesof international law' and that 'an international convention may play a part in thedevelopment by the courts of the common law' (Mason CJ and Deane J in Ah Hin Teoh).

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Practitioner checklist

1. Concerning a child?

Does the action or decision complained of affect a child or children (eg denial ofParenting Payment)?

2. Whose actions?

a. If a child is affected, list the relevant actions and decisions and, for each,

identify the decision-maker.

b. Is the decision-maker covered by the CRC (eg Centrelink, police, educationdepartment, department of families, community services and indigenous affairs?)

3. Best interests considered?

a. If the decision-maker is covered by the CRC, did it take the child's bestinterests into account?
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b. How were best interests defined? Were the child's views taken into account (ifthe child is capable of forming a view)? Were the parents' views taken intoaccount?c. Were the child's best interests made a primary consideration or the paramountconsideration as relevant?

d. If you are unable to judge, consider how you might find out.

4. Challenging the decision

a. Raise your concerns with the decision-maker or on review or appeal (eg at the

Social Security Appeals Tribunal or in a bail application).

b. If the decision breaches the child's rights, explore possible remedies. If the

decision-maker is subject to the Commission's jurisdiction (discretionary

decisions of federal agencies such as Centrelink or the department of families,

community services and indigenous affairs), consider submitting a complaint

(complaints infoline 1300 656 419).

5. Specialist advice

For assistance, contact a specialist youth advocacy or legal centre or your local

legal aid office.

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Select bibliographyP Alston & G Brennan (eds), The United Nations Children's Convention andAustralia, 1991, HREOC/ANU/ACOSS

P Alston, S Parker & J Seymour (eds), Children, Rights and the Law, 1992, Oxford Uni.Press

A Asche, 'The Best Interests Principle in Article 3(1) of the UN Convention on the Rightsof the Child' in 1994 Congress Papers, First World Congress on Family Law andChildren's Rights, Sydney

M Freeman, 'The Best Interests of the Child? Is the Best Interests of the Childin theBest Interests of the Children?, (1997) 11 International Journal of Law, Policy and theFamily360

J Harvey, U Dolgopol & S Castell-McGregor (eds), Implementing the United NationsConvention on the Rights of the Child in Australia, 1993, South Australian Children'sInterest Bureau

Joint Standing Committee on Treaties, United Nations Convention on the Rights of theChild, 17th Report, 1998, Commonwealth of AustraliaS Parker, 'The Best Interests of the Child - Principles and Problems', (1994)8 International Journal of Law, Policy and the Family 26

D Sandor, 'How High - How Far? The Best Interests Principle in Family Law', (1998) No19Australian Children's Rights News
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G van Bueren, The International Law on the Rights of the Child, 1995, Martinus NijhoffPublishers

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CasesAh Hin Teoh: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 183 CLR273

In the matter of B and B: Family Law Reform Act(1997) FLC 92-755

Marion's Case: Secretary, Department of Health and Community Services v JWB andSMB(1992) 175 CLR 218

Parenting Issues for De facto couples

Where there are children of a de facto relationship, it is not necessary for parties to have satisfied the

abovementioned definition of a de facto relationship in order to apply for parenting orders. They will have

standing before the court as mother or father.

You can apply for Court orders stipulating the times and days on which you wish to see the children. Such orders

can provide for contact on holidays and other important occasions. Since 2005 the Courts have been required to

apply a presumption that it is in the best interests of the child for the childs parents to have equal shared parentalresponsibility for the child. If your role as a parent is being unreasonably diminished, you may have grounds for

an application.

LEGISLATION

De facto:

Same Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform)

Act 2008 & Property (Relationships) Act 1984

Family Law Act 1975

A property settlement or a financial separation agreement must be finalised within twelve

months following the separation. This achieves a result without court intervention (under s

90C and s 90UD)

Parental responsibility, s61B of the Family Law Act 1975 as all the duties, powers, responsibilities,and authorities which, by law, parents have in relation to children.
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The Court must now apply a rebuttable presumption contained in s61D of the Family Law Act

that it is in the best interests of children and parents to have a shared parental responsibility.

a) abuse of that child; or

b) family violence.

s71 and 72, Care Act, the Childrens Court can make care orders if its satisfied that on the

balance of probabilities the Children require care/protection.

S35 Child support assessment act 1989 (cwlth) new child support formula, more time

spent with child, less pay. Spend 65%, no pay.

The benefits of settling it without the court include:

o The parties get to make their own choices

o It significantly reduces financial and emotional costs

o More open communication conflict resolution procedure

o Much easier to move forward, no ongoing, lengthy court process

With the court:

- The court may be involved if the duration of the court was at least two years children

are involved or one party contributed much more than the other.

- The court will judge based on the contributions made to the marriage by each party,

such as in Powell v Suprenscia, where a de facto couple took their separation to the

court and Suprenscia was paid a significantly larger amount due to the fact she

contributed much more to the relationship than Powell.- The court may also consider future needs of each party

- The court may adjourn proceedings if the financial circumstances are about to

change and it would be wiser to sort out at a future date

- Maintenance Under the Family Law Act 1975, a spouse qualifies if:

o They are caring for a child under 18

o They cannot work due to physical or mental incapacity

- They must claim before two years elapse since the end of the relationship


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MEDIA

The facts on child protection in NSW - By Karen Michelmore (cross media reporter)

Nationally, around 39,000 children in Australia are the subject of care and protection orders,and more than 37,000 are in out-of-home care, such as foster homes.

The budget of NSW's Department of Community Services - responsible for supportingvulnerable families and keeping children safe from abuse and neglect - is a massive $1.67billion.

Deaths of two-year-old Dean Shillingsworth - whose badly decomposed body was found in atartan suitcase in a pond at Ambervale in October 2007 - and the starvation of Ebony, seven,a month later at Hawks Nest - prompted action.

Documents

Legal Info - Children2