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Part Two:
MARRIAGE, DIVORCE AND OTHER RELATIONSHIPS
2. LAW AND THE REGULATION OF FAMILY RELATIONSHIPS
(i) Constitutional Aspects of Family Regulation
Parliament has exclusive power to make laws with respect to divorce (Constitution s
51(xxi)) and divorce and matrimonial causes (s 51(xxii)). Federal laws prevail over state
laws to the extent of any inconsistency (s 109). S 51(xxxvii) empowers Cth to make laws
with respect to it by the Parliament of any state (cooperative federalism).
The High Court in A-G (Vic) v The Cth found that the marriage power was not limited to the
formation of marriage but also covered the status that marriage involved, including the
mutual rights and duties between spouses (affirmed by the HC in Russell v Russell and
ACT v The Cth).
Constitutional test is whether the legislation creates, defines or declares rights or duties that
arise out of, or have a close connection with, the marriage relationship (Gibbs J in R v
Lambert). Constitutionality of power affecting third parties is determined by whether there is
a sufficient connection to the subject matter of the constitutional power and it is reasonable
for effectuating the rights and obligations of the two parties to the marriage (affirmed by
Fogarty J in Re Gould). Marital relationship extends to relationship of the parties to the
children of that marriage (Gauldron J in Dougherty v Dougherty).
Marriage power not limited to marriages that are not monogamous marriages of Christianity
(Windeyer J in A-G (Vic) v The Cth).
Although S 51 (xxi) and (xxii) deal with marriage and its dissolution, which are personal
matters, they are regarded as a matter of public concern and uniformity, important for the
community (Lansell v Lansell) (Taylor and Owen JJ said property division was a
matrimonial cause, Kitto, Menzies and Windeyer JJ said it was within implied incidental
power). Matrimonial causes include matters which are subsidiary and consequential to
marriage and divorce (Dawson J in Re F; ex parte F).
FLA now governs all parenting disputes over children. HC, Gibbs J: entitling custody of a
child not of the marriage is outside the ambit of s 51(xxi) Constitution. Adopting a stepchild needs permission from a court exercising jurisdiction under FLA, followed by
application to state Supreme Court.
(ii) Dissolution of marriage
General: 3 elements of separation; intention, action, and communication
FLA defines grounds for marriage as an irretrievable breakdown (s 48(1)), separated and
stayed so for no less than 12 months after application (s 48(2)) and if there is no reasonable
likelihood of cohabitation being resumed (s 48(3)). Even if cohabitation is brought to an end
by one of the parties, this can still amount to separation (s 49(1)), parties may be separated
notwithstanding physical cohabitation (s 49(2)). If parties separated and cohabited, and
within 3 months of cohabitation separated again, the periods of living separately and apart
may be aggregated as if one continuous period (s 50(1)), court determines which periods of
separation that interrupted cohabitation were actually substantial (s 50(2)).
Parties still living together
Even if living together, separation may be made out, separation involves breakdown of the
marriage of which there any many components, more than just physical separation (Evatt
CJ, Demack and Watson JJ in Pavey and Pavey). S 48 envisages serious alteration in
relationship (Pavey and Pavey; Caretti).
Parties not living together
Dissolution can be brought about by a unilateral act, relevant date is when intention to
divorce was, not when communicated to partner (Tye). Reservations to approach expressed
in Batty and Batty by Wilczek J, arguing contrary to the s 43 need to preserve marriage,
family and interests of children.
Part Three:
THE COURT SYSTEM AND DISPUTE RESOLUTION
3. THE FAMILY COURTS AND OTHER COURTS WITH JURISDICTION IN FAMILY LAW
Family Court
Limited jurisdiction under FLA, Marriage Act, Child Support (Registration and Collection) Act
and Child Support (Assessment) Act. Superior court (FLA s 34). May exercise accrued
jurisdiction to determine non-federal aspects of a claim where family law forms a part
(Warby and Warby).
Federal Magistrates Court / Federal Circuit Court
Jurisdiction in general and family matters (s 10 Federal Magistrates Act).
Family Law Amendment (Family Violence and Other Measures) Bill 2017: defines family
violence, prioritises keeping children safe, objects include to give effect to UNCROC.
Cross-Vesting Act 1987: confers superior courts with power to transfer matters between
courts where the other court was more appropriate.
Part Four:
DOMESTIC VIOLENCE
4. THE NATURE AND PREVALENCE OF DOMESTIC VIOLENCE
Governing law is usually state law, not Cth law.
Types of violence: conflict instigated violence, common couple violence, situational couple
violence, violence driven by conflict. Family violence is typically gendered.
Family violence means violent, threatening or other behaviour by a person that coerces or
controls a member of the person’s family (the family member) or causes the family
member to be fearful (FLA s 4AB(1)) (subjective test not objective).
●
Includes: assault, sexual assault, stalking, taunts, intentionally destroying property,
intentionally causing death or injury to an animal, unreasonably denying financial
autonomy, unreasonably withholding financial support for reasonable living
expenses, preventing connections with others, unlawfully depriving liberty.
Resources to address family violence: NSW legislation, police, interim/final AVOs, contact
centres.
● Apprehended domestic violence orders (ADVOs, Crimes (Domestic and Personal
Violence) Act s 16(1)): court may, on application, make an ADVO if satisfied on the
balance of probabilities that a person who has or has had a domestic relationship
with another person has reasonable grounds to fear and in fact fears: personal
violence offences (s 16(1)(a), intimidation (s 16(1)(b)(i)) or stalking(s 16(1)(b)(ii))
○ Intimidation is conduct amounting to harassment or molestation (s 7(1)(a)), an
approach that causes the person to fear for their safety (s 7(1)(b)), or causes
reasonable apprehension of injury to them or to whom they have a domestic
relationship (s 7(1)(c)). Court will have regard to any pattern of violence to
determine intimidation (s 7(2)).
○ Stalking: watching or frequenting of the vicinity of, or an approach to, a
person’s place (s 8(1)). Court will have regard to any pattern of violence (s
8(2)).
○ The more serious the allegation, the higher the standard of proof
(Briginshaw test)
● Court determines that fear is not necessary if: person in danger is child, person is
below average general intelligence function, personal violence is likely, or the order is
necessary for protection (s 16). Court can impose prohibitions or restrictions which
are necessary or desirable to the court to ensure safety and protection of the person
in need of protection and any children from domestic or personal violence (s 35(1)).
● Every order is taken to prohibit assault, harassment, molestation or otherwise
interfering with the protected person and intimidation and stalking (s 36).
● Orders last as long as specified, or 12 months if not specified (s 79).
● Provisional orders can be made by police if there is immediate need, application
must come back to court for an application for a final order, max 28 days.
● Interim orders: can be made ex parte.
● AVOs are available to anyone who reasonably fears violence, without having to
demonstrate the existence of an intimate relationship (s 9).
Who can apply
● There must be an application by the person for whose protection the order would be
made, or by a police officer (s 48). An investigating police officer must make an order
if they suspect or believe a domestic violence offence may occur (s 49).
○ Unless AVO already in force (s 49(3)), provisional order has been made (s
49(3)), or person >16yo intends to apply for themselves (s 49(4)) or there is
good reason (police officer must make written record of reason s 49(5)), that
the officer reasonably believes in (not applicable if person has already been
victim (s 49(6)).
Requirement to attend family dispute resolutions prior to filling in children’s matters (s 60I),
unless court satisfied of reasonable grounds to believe there is abuse or family (s
60J(1)(B)), family violence order invalidated to the extent of any inconsistency (s 68Q FLA),
court must explain findings inconsistent to family violence order (s 68P FLA).
Part Five:
PROPERTY DIVISION AND INCOME SUPPORT ON RELATIONSHIP BREAKDOWN
5. THE ECONOMIC CONTEXT
6. PRIVATE ORDERING OF PROPERTY DIVISION AND MAINTENANCE
In considering what order (if any) should be made, the court shall take into account: (a) the
financial contribution, (b)-(c) any other contribution, or contribution as a parent, (d) the effect
of any order to the marriage and children, (e) the circumstances between the parties (FLA s
75(2)), (f) any other orders made under the FLA, and (g) any child support agreements (FLA
s 79(4)). FLA s 75(2) sets out several factors in a shopping list that courts will consider.
(i) Means of Private Ordering “divide and walk away”
● Informal agreements: little property to divide, simple, quick. Risks: parties unaware of
rights under FLA, parties cannot oust jurisdiction of court.
● Under FLA s 44(3)(a) where a divorce order has taken effect or (b) a decree of nullity
of marriage has been made, proceedings of matrimonial cause shall not be instituted
without leave of the court or with consent of both parties after the expiration of 12
months after the date took effect or the date of making the decree. Under FLA s
44(4) the court shall not grant leave unless (a) hardship would be suffered by a party
or child without the leave or (b) an applicant would have been unable to support
themselves without an income, allowance or benefit. In Richardson and
Richardson the court found that hardship under s 44(4)(b) should be exercised with
care.
(ii) Consent Orders Under s 79
The majority of cases in practice are resolved by consent orders, which are acts of judicial
power but by consent. When an application is submitted, discretion should be exercised with
reference to propriety of the provisions with respect to financial matters, the making of an
order is not automatic (Harris v Caladine). Consent orders are final, subject to exceptions
under s 79A relating to injustice, impracticability or other extenuating circumstances.
(iii) Binding Financial Agreements
May be made during or after marriage, and in de facto relationships (ss 90UB and 90UD). If
validly made they oust the jurisdiction of the court to make an alteration of property or an
order for maintenance.
● Before (s 90B(1)-(4): pre-nup, if expressed to be made under s 90B, written
agreement, contemplation of marriage, not parties of any other BFA
○ Deals with property or financial resources at the time of the agreement or at a
later time and before divorce
○ Maintenance of either party, during marriage, or after divorce
○ And may deal with other matters
○ May terminate a previous BFA if all parties are the same
● During (s 90C(1)-(4)): written agreement, parties not parties to any other BFA,
expressed to be made under s 90C
● After (s 90D(1)-(4)): written agreement, parties are not parties to any BFA, expressed
to be made under s 90D.
Formalities under s 90G(1), introduced by Federal Justice System Amendment
(Efficiency Measures) Act (No. 1)
● (a) signed by all parties
● (b) each party provided with independent legal advice about rights, advantages and
disadvantages of making agreement
● (c) signed statement by legal practitioner that advice was given. Ruane: the signed
statement must be from a lawyer with an Australian Practising Certificate
● (ca) agreement has not been terminated and been set aside by a court
Exceptions to formality under s 90G(1A)
A financial agreement is binding on the parties if:
● (a) agreement is signed by all parties
● (b) one or more formalities under s 90G(1) is not satisfied
● (c) a court is satisfied that it would be unjust and inequitable if the agreement were
not binding on the parties
● (d) the court makes an order declaring the agreement is binding on the parties
● (e) the agreement has not been terminated and been set aside by a court
Onus is on person relying on BFA. Certificate provides sufficient evidentiary foundation for
saying advice had been given. Onus shifts to client seeking to challenge this (Thackray J in
Hoult and Hoult).
Setting aside
A court may make an order setting aside a BFA if it is satisfied that the agreement was
obtained (s 90K(1)):
● By fraud
● Was void/voidable/unenforceable (Derry v Peek: undue influence, duress, etc)
● There was uncertainty
● There has been a material change in circumstances that would lead to hardship if the
order was not set aside
● BFA was unconscionable (estoppel: assumption that the agreement will not be
enforced, detriment if now enforced, responsibility for assumption)
7. THE DEFINITION OF PROPERTY UNDER THE FAMILY LAW ACT
Courts may take account of financial resources but may only make orders in relation to
property. Property in the s 79(1) sense has a wide definition, including that which belongs to
a person exclusive of others and can be subject of bargain and sale (Watson, Murray and
Wood JJ in Duff and Duff).
● Includes: partnership interests, restitutionary claim (Equuscorp v Haxton), goodwill,
trademarks, licences, life policies, rights under contract, present right to a future
receipt (Shepherd v Federal Commissioner v Taxation)
● Superannuation funds probably property, but there are consequences of premature
withdrawal to consider before splitting/withdrawing
(i) Assignability
Constraints upon alienation do not alter the character of the asset (Best and Best), but may
affect the orders that the court can make.
●
●
●
E.g. chose in action arising from a proprietary estoppel could be transferred as they
were proprietary rights capable of assignment (Carvill and Carvill)
Right to sue for a right in personam is not assignable, and so does not constitute
property under s 79 (Zorbas and Zorbas).
Primary judge in Kennon v Spry found that trust money was property of the
marriage since the trust assets and the trustee’s power to appoint them to family
members were an equitable right that should be regarded as property (French CJ,
factors below).
○ H’s legal title to the assets
○ Origins of the greater part as property acquired during marriage
○ Absence of any equitable interest in them in any other party
○ Absence of any obligation on his party to apply all or any of the assets to any
beneficiary
○ The contingent character of the interests of those who might be entitled to
take upon a default distribution at the distribution date
(ii) Financial Resources
Courts cannot make orders relating to financial resources, but they are taken into account
under s 75(2) to the extent that the other party may gain a greater percentage of the other
property available for distribution. Control over assets and income falls within s 75(2)
consideration as a financial resource. Failure to make disclosure or lie about property will
lead to exercise of discretion by court which is adverse to that person (Weir and Weir),
estimate of value and order to pay other party even if property no longer exists. Test for
financial resource is to make a factual inquiry as to whether or not support from that source
could reasonably be expected to be forthcoming were the party to call on it (Hall v Hall).
8. DISCRETION UNDER SECTION 79
In property settlement proceedings, the court may make such order as it considers
appropriate (a) in the case of proceedings with respect to the property of the parties to the
marriage of either of them - altering the interests of the parties to the marriage in the
property to make, for the benefit of either or both of the parties to the marriage or a child of
the marriage, such settlement or transfer of property as the court determines (s 79(1) FLA).
The court will not make an unless it is just and equitable to make it (s 79(2)).
In considering what order (if any) should be made, the court shall take into account (FLA s
79(4)): (a) the financial contribution, (b)-(c) any other contribution, or contribution as a
parent, (d) the effect of any order to the marriage and children, (e) the circumstances
between the parties (FLA s 75(2)), (f) any other orders made under the FLA, and (g) any
child support agreements.
(i) Basic Methodology
Four stage approach (Hickey)
1. Value the pool
2. Assess contributions
3. Assess s 75(2) factors
4. Determine if it is just and equitable, meaning of property at the first stage and then
when making orders
1. Value the pool
Values are assessed at the date of the trial. Court must reach its own assessment where
there are different valuations placed upon the property by valuers called for each party, it
does not simply split the difference (Marriage of Lenehan). Valuation to be made with
reference to what a reasonable buyer will pay and what a reasonable seller will sell at.
Realisation and relevant capital gains costs and taxes are factored in.
2. Assessing contributions
Contributions assessed under s 79(4). Determining overall contributions made by the parties
to all of the past and present property (globally) and determining contributions made by the
parties to particular assets (asset by asset) are both approaches that are acceptable, as
found by Mason and Deane JJ in Norbis v Norbis. However, following case law has
suggested that a global approach is preferred (Zyk and Zyk).
Presumption of equality should not be a starting point when assessing contributions (Gibbs
CJ in Mallet v Mallet), but it may be a conclusion in many modern cases (McLay). In Mallet
v Mallet, Wilson J explained that each party’s contributions should be assessed on a case
by case basis, assessing various roles such as a husband’s contributions as a breadwinner,
and a wife’s contributions as a homemaker or parent, these roles are to be given the same
weight (Fogarty J in Waters v Jurek).
Courts may have regard to special factors or contributions, as seen in the case in JEL and
DDF. However the doctrine of special contribution was criticised by Nicholson CJ and
Buckley J in Figgins and Figgins as the approach is invidious to arbitrariness.
Pre-marriage Property
The longer the period of cohabitation, the less weight needs to be given to the initial
contribution of capital (Crawford and Crawford), the initial significance and rate of
diminution varies from case to case (principle affirmed in Pierce and Pierce, Lee Steere).
● Long marriage, both worked hard during marriage to contribute directly and indirectly
to assets (Bremner and Bremner), resulted in 50-50 split.
Factors affecting split of pre-marriage property (Zyk and Zyk)
● Initial difference
● The use made of those assets (was success due to one party? (Cook v Langford))
● Whether the assets have increased in value and whether that has been due to the
efforts of the parties
● The length of the marriage
● The other contributions in the intervening period
Other factors
● Contribution v windfall: depends on whether contribution was joint (Zyk and Zyk).
○ C.f. Farmer and Bramley: modest assets, bought from H’s money.
● Inheritances: Other party cannot be regarded as contributing significantly to an
inheritance received very late in the relationship and certainly not after it has
terminated (Bonnici and Bonnici).
● Gift from one side of the family: analyse whether gift was intended to one or both
parties, court has ultimate discretion (Gosper and Gosper).
● Compensation for injuries: may be a direct contribution if one party contributes to the
conservation of a damages award through taking care of the other party (Zubcic and
Zubcic).
●
●
●
●
Domestic violence: Where there is a course of violent conduct which is
demonstrated to have had a significant adverse impact or upon a party’s
contributions to the marriage. Or made their contributions more arduous than they
ought to have been, the judge should consider this in light of weighing contributions
in light of s 79 (Kennon and Kennon). Issues raised by Middleton 2001 research,
asserting Kennon should not be followed because quantification of the impact of
violence could only be arbitrary.
Long service leave: if capital = property (Burke and Burke), is it based on a right or
income?
Superannuation: Under s 90MC FLA, a superannuation interest is to be treated as
property for the purposes of paragraph (ca) of the definition of matrimonial causes in
s 4. Courts may use: splitting orders (s 90MT), and flagging orders (s 90U).
Mathematical approach to assess superannuation not necessary, simply evaluate
contributions in superannuation as they to other assets (M v M). If splitting, valued in
accordance with Family Law (Superannuation) Regulations 2001. Whenever
splittable amount becomes payable, W should be entitled to be paid an amount
calculated in accordance with the regulations using a base amount, at the date of the
orders, and there should be a corresponding reduction to the entitlement of H but for
this order (s 90MT(1)(a) FLA).
Losses and wastage: should be shared unless one of the parties embarked upon a
course of conduct designed to reduce worth of assets or acted recklessly, negligently
or wantonly (Baker J in Konaliw and Konaliwi).
3. S 75(2) factors
The court must pay regard to the factors in s 75(2): age and health, income, property and
financial resources, care of child, ability to support themselves, eligibility to government
benefits, earning capacity, duration, parenting capability, financial circumstances, any
binding financial agreements, Child support available under Child Support (Assessment) Act
etc.
Two meanings of factors: a collective one where they are treated as a whole and an
adjustment is made by reference to the factors taken together OR as reference to the
individual factors that are relevant in each case. Adjustment is needed to avoid an unjust
outcome in some cases as roles and activities which were recognised during the marriage
may suddenly count for little after separation (Fogarty J in Waters v Jurek).
Full Court made it clear that s 75(2) factors are to be read in property cases in a different
way to their reading in spousal maintenance cases. In property cases, s 75(2) was not
limited to addressing issues of need (Collins and Collins).
Important: There has certainly been a lack of uniformity of judicial decisions, but the
reconcilable thread appears to be that the application will turn on the length of the
marriage and the specific facts in question.
4. Just and equitable
Stanford v Stanford (just and equitable):
1. It is necessary to begin consideration of whether it is just and equitable to make a
property settlement order by determining the equitable and legal interests of the
parties.
2. In exercising discretion under s 79 the court must not assume that the parties’ rights
or interests are or should be different from those that exist.
3. The court must not assume that one or the other party has the right to an interest in
marital property in isolation which is fixed by reference to matters including s 79(4)
factors. In many cases, just and equitable is satisfied by observing that they are no
longer in a relationship, and it is just and equitable to make an order because there
will never be common use of the property by both (Bevan and Bevan).
The courts will have some regard to the choices made in the relationship on how financial
affairs were handled and co-mingled, which will enform what a just and equitable order
would be (Chancellor and McCoy, citing Fielding and Nichol). Consider whether finances
were communal or separate.
9. SPOUSAL MAINTENANCE
Right to spousal maintenance enlivened by s 72 (s 90SE) where the first party is liable to
maintain the second party if the first party is reasonably able to do so and the second party
is unable to support themselves adequately by reason of: care and control of a child less
than 18yo, physical or mental incapacity for employment or other adequate reason under s
75(2). Standard is a reasonable standard of living (is 72(2)(g), as compared with previous
life. In proceedings with respect to maintenance, the court may make such an order as it
considers property for the provision of maintenance in accordance with this part (s 74(1)),
discretion is exercised with reasonableness in the circumstances. Can be paid as lump sum,
periodic sum, transfer of property (s 80). Impact on earning capacity and assessment of
previous contributions made.
10. CHILD SUPPORT
Registration of debt made payable to Cth gov, Child Support agency makes determination
about how much is payable (Child Support (Assessment) Act 1989). Although the original
formula was devised by the Fogarty Committee in 1988, the current formula is based on s 35
Child Support (Assessment) Act:
● Calculate parent’s income (taxable minus self-support)
● Add income together
● Divide parent’s individual child support income by the combined child support income
to get an income percentage
● Work out each parent’s care percentage of the child
● Work out cost percentage of each child
● Subtract cost percentage from income percentage for each parent = child support %
○ Negative % = receive, positive = pay
● Work out the costs for each child based on parents’ combined child support income
● Get final child support payable by multiplying positive child support % by the costs of
the child.
Appeals are to be made to the AAT.
Part Six
PARENTS AND CHILDREN
11. PARENTHOOD
FLA ss.60H, 60HA, 60HB: children born as a result of artificial conception, children of de
facto partners, children born under surrogacy arrangements
12. THE EFFECTS OF RELATIONSHIP BREAKDOWN ON CHILDREN
Increased advocacy for shared parenting, does not have to involve equal time, and usually
will not, but the term is used to describe a parenting arrangement in which both parents are
actively involved in the parenting of the child, and this means more than every other
weekend and half the school holidays.
13. PRIMARY DISPUTE RESOLUTION AND THE ROLE OF FAMILY RELATIONSHIP
CENTRES
FLA ss. 11-19Q, s. 44(1B),(1C), 60I, 60J, 79(9) Via AustLII
(i) Counselling and mediation generally
There is a strong focus in the family law system on resolving disputes without the need for
adjudication. Many forms: counselling, mediation and conciliation. Different processes,
advisory: the mediator can give information and advice about likely outcomes, facilitative:
assist the parties to come up with their own options and resolution of the dispute without
offering advice.
(ii) Family Relationship Centres
Free mediation and counsellation, staffed by professional counsellors and mediators. Five
roles: information, seminars and advice, resolving ongoing disputes, assistance to
grandparents, help in resolving child support issues.
(iii) Family Consultants
Family consultants conduct family dispute resolution conferences and prepare reports for the
family courts pursuant to s11A. Following the 2006 FLA changes, the work of family
consultants is not protected by confidentiality. Evidence relating to communication with
family consultants is admissible under s 11C.
(iv) Less adversarial trials
Child-related proceedings are: focused on the children and their future, flexible so that it can
meet the needs of particular situations, anticipated to be less costly compared to traditional
trials and will save time in court, less adversarial and less formal than is usually the case in
court. The judge controls the hearing process and its inquiry.
14. CHILDREN AND THE INDISSOLUBILITY OF PARENTHOOD
(i) The Shared Parental Responsibility Legislation
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) brought about
generational change in family law and a cultural shift in the management of parental
separation away from litigation and towards co-operative parenting.
(ii) Equal Shared Parental Responsibility
Thus there is a presumption of shared parental responsibility when making parental orders
(s 61DA), as equal shared parenting is in the best interests of the child (s 61DA(1); affirmed
in Goode and Goode by Bryant CJ, Finn and Boland JJ). It can be fairly said there is
legislative intent in favour of substantial involvement of both parents in their children’s lives,
both as to parental responsibility and as to time spent with children, provided it is in the best
interests of the child and is reasonably practicable.
● Does not apply if there is abuse or family violence (s 61DA(2))
● Applies to interim orders (s 61DA(3))
● May be rebutted if not in the best interests of the child (s 61DA(4))
The court must consider the child spending equal time or substantial time with each parent
(s 65DAA). Under s 65DAA(1) if it is:
● (a) In the best interests of the child
● (b) Is reasonably practical (s 65DAA(5))
● (c) If above are satisfied, the court should consider making the order.
● Substantial and significant time (s 65DAA(2)), when the courts make this
determination, best interests and practicability are considered
(iii) Parenting Orders
Parenting orders, general principles outlined in s 60B, regarding the need to ensure the best
interests of the children, to have the benefit of both of their parents, to reach their full
potential, to protect them from neglect, etc.
A wide range of parenting orders may be made by the court (s 64B(2)), and may be applied
for under s 65C by (a) either or both of the child’s parents, (b) the child, © a grandparent of
the child or (d) any other person concerned with the care, welfare or development of the
child. Once a person has satisfied the threshold test of being concerned with the care,
welfare or development of the child, then the parenting orders to be made are based on what
is in the best interests of the child (Aldridge v Keaton), determined on a case by case basis
(Burr J in KAM and MJR).
15. THE BEST INTERESTS OF THE CHILD
(i) Determining the Best Interests of Children
Best interests of the child are the paramount consideration (s 60CA). Determining the best
interests is not an objective test, but a value judgment (CDJ and VAJ). Two views,
characterised by Richard Chisholm as strong and weak:
● Strong: the best interests of the child is the only factor to be considered in making a
determination. It overrides any other relevant considerations or interests (no matter
how significant).
● Weak: the best interests of the child is the primary factor to be considered in making
a determination. However, it may sometimes be overridden by other relevant
considerations or interests.
In Australia, aside from in relocation cases, the strong view tends to prevail.
Primary considerations (s 60CC(2)):
● (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
● (2A) greater weight is given to (b) than (a)
Additional considerations (s 60CC(3)):
● (a) views expressed by the child
● (b) nature of relationship of the child with parents and others
● Parents’ initiative, likely effect of separation on parents or children, practicality,
capacity to care, maturity of child and parents, etc.
Primary considerations do not decide every case (Marsden & Winch), and notwithstanding
the nomenclature, additional considerations under s 60CC(3) may outweigh the primary
considerations (s 60CC(2)) (FC in Aldridge v Keaton).
Meaningful relationship: three possible interpretations (McCall v Clark):
● (a) present relationship: courts consider benefit by examination of evidence of the
nature of the child’s relationship at the date of the hearing
● (b) presumption approach: court should assume that there is a benefit to all children
in having a meaningful relationship with both of their parents
● (c) prospective approach: courts consider and weigh the evidence at the date of the
hearing and determine how, if it is in a child’s best interests, orders can be framed to
ensure the particular child has a meaningful relationship with both parents
Prospective approach is generally preferred (Sigley and Evor).
(ii) Principles for Making Decisions about Primary Residence
Any person concerned with the care, welfare or development of the child may apply for a
parenting order under s 65C of the FLA.
(a) A maternal preference?
Mason and Wilson JJ in Gronow and Gronow rejected any rule of maternal preference.
Mothers were likely to be successful if they appeared to conform to a maternal stereotype of
self-sacrifice on behalf of their children (Moloney article).
(b) Preference for the natural parents?
The case of Re Patrick highlights that the principle of the best interests of the child applies
in all case involving children’s rights, without any exception. The principle cannot be
compromised or ignored simply due to one biological parent of a child believing that a
complete family unit can be achieved without the involvement of the other biological parent.
Does not have to be a natural parent (Re Mark).
(c) The wishes of the child
The court must consider any view expressed by a child in deciding whether to make a
particular parenting order (s 60CD(1)). Full Court in R and R held that a judge might reach a
conclusion contrary to the children’s validly held wishes, but should provide good reasons for
doing so.
(d) Separation of siblings
In making decisions on children’s matters where the best interests of a child are to be
considered, the court is required to take into account the effect on the child of any separation
from any other child with whom her or she has been living (s 60CC(3)(d)(ii)). Courts do not
want separation between siblings to occur, reflecting current social views (Mathieson and
Mathieson; H v H). Separation of siblings was considered most serious from the point of
view of the respective children (Bennett and Bennett).
(e) Interim orders
In the leading case Goode and Goode the full court held that the presumption in favour of
maintaining the status quo could not survive the 2006 amendments. Where there is a status
quo or well settled environment, unless there are protective or other best interests concerns
for the child, the Court must follow the structure of the Act and consider accepting, where
applicable, equal or significant involvement by both parents in the care arrangements for the
child.
(iii) Equal time?
Without a finding of reasonable practicality in s 65DAA(1)(b), there is no power to make an
equal time or substantial and significant time parenting order (MRR v GR). S 65DAA(1) is
expressed in imperative terms. Although intended by Parliament to be a requirement on the
court to consider equal time, the court has construed it as a prohibition on the equal time
considerations, that it be reasonably practical. The court should predict on evidence whether
their order at the date the order takes effect would be practicable or feasible (Wainder v
Wainder).
(iv) Relocation
AMS v AIF: Best interests of the child is the paramount consideration, but not the sole
consideration and the interests of the parties may be relevant to the best interests of the
child (Kirby J). On one hand, the best interests of a child is its right to know, and to have
regular contact with each parent whilst growing up. On the other hand, such rights exist in a
society whose members enjoy a high measure of freedom of movement. Watts J in U v U,
four proposals to be considered in relocation cases:
● Child relocates with residence parent
● Child does not move and there is a change of residence parent
● Child does not move and the residence parent also stays
● Child relocates with the residence parent and the contact parent also moves
McCall and Clark, in relocation matters the following should be considered:
● Whether equal time or substantial and significant time spent with each parent, would
be in the child’s best interests
● Weigh up these possible time regimes against all the factors which would be
advantageous to the child in terms of the relocation proposal (including s 65DAA(5)
matters).
● Consider whether an order should be made for equal or substantial and significant
time in one location, or for the child to relocate with the parent.
(v) The Role of the Independent Children’s Lawyer
The court may appoint an independent children’s lawyer on its own motion or by application
of a party (s 68L), they are best interests representatives (s 68LA). Re K set out a nonexhaustive list of guidelines for appointing separate representatives.
16. PARENTING ORDERS AND CHILDREN’S SAFETY
(i) Domestic Violence and physical abuse
FLA 60CF,60CG, 60K, 68N-68T
Notification of alleged child-abuse and ill treatment under s 67Z and s 67ZA requires
notification to the relevant state or territory child welfare authority of any allegations of abuse
of a child. Violence is relevant in parenting proceedings: violent parents are poor role models
for children and violence is indicative of poor capacity for parenting (Patsalou and
Patsalou).
Test is looking at the whole of the evidence, whether contact might expose the children to an
unacceptable risk because, although it is almost impossible to quantify, it may place those
children in circumstances of potential jeopardy (A and A). In considering what order to
make, the court must ensure that the order is consistent with any family violence order and
does not expose a person to an unacceptable risk of family violence, whilst preserving the
child’s best interests as the paramount consideration (s 60CG).
(ii) Child sexual abuse
Contact will be restricted or denied where it would expose the child to an unacceptable risk
of abuse (M and M). The degree of risk has been defined by courts in various ways, as a
‘risk of serious harm’ (A and A), ‘an appreciable risk’ (Marriage of M), a ‘real risk’ (Leveque
v Leveque), in their efforts to protect the child’s paramount interests. To achieve a proper
balance, the test is best expressed by saying that a court will not grant custody or access to
a parent if that custody or access would expose the child to an unacceptable risk of sexual
abuse (M and M). High Court said in this case that you should not make an affirmative
finding of child sexual assault unless it satisfies the Briginshaw standard of proof; the more
serious the allegation, the higher the standard of proof.
Evidence problem: Two views on the evidence needed to prove unacceptable risk: 1. Look
at the possibility of past abuse based upon the evidence, 2. Look at findings of fact that can
be made which justify a conclusion of unacceptable risk. Disclosures which come long after
a parent becomes convinced their child has been abused may well be viewed in a different
light from disclosures made before any concerns about abuse have arisen (Langmeil and
Grange).