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Statutory framework and parental responsibility

Statutory framework and parental responsibility

Orders concerning parental responsibility, with whom a child will live and with whom a child will spend time (and how much time), are parenting orders. The child’s best interests are the paramount consideration for the courts when making a parenting order. In deciding the arrangements that will promote the best interests of a particular child, the courts must consider the factors set out in Part VII of the FLA. These factors comprise a series of statutory objects and principles, two primary and 14 additional considerations. The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. The second primary consideration is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. There is sometimes tension between these concepts in cases involving allegations of family violence. However, as a result of the recent legislative amendments, a new provision has been inserted into the FLA (section 60CC(2A)) that requires greater weight to be given to the safety of the child than to the benefit to the child of having a meaningful relationship with both parents.

As part of the additional considerations, judicial officers have to consider the inferences that can be drawn from a family violence order made in relation to a child or a member of the child’s family (section 60CC(3)(k)). This applies to all family violence orders irrespective of whether they are or were interim or final, or whether they were made by consent. In so doing, judicial officers are obliged to consider the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in proceedings for the order and ‘any other relevant matter’. Section 60CC(3)(m) of the FLA permits the courts to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.

It is important that people seeking assistance from the courts know IT IS NOT COMPULSORY for parties to participate in family dispute resolution processes prior to the commencement of court proceedings, in cases where the court is satisfied there are reasonable grounds to believe:

  1. there has been family violence or abuse, or
  2. there is a risk of family violence or abuse.11

Parties to children’s proceedings have certain obligations under the Act. These include informing the courts of any family violence order that applies to the child or a member of the child’s family (section 60CF), informing the courts if a child or member of the child’s family is under the care of a child welfare law (section 60CH) and informing the courts of any notifications to, or investigations by, prescribed child welfare authorities (section 60CI) that relate to an allegation, suspicion or risk of abuse.

Courts exercising jurisdiction under the FLA also have certain obligations.

The former section 60K of the FLA required courts to take prompt action in parenting proceedings in which allegations of family violence or abuse are made that may be relevant to the outcome. That section has now been repealed.12 In its place are sections 67ZBA and 67ZBB.

Cumulatively, they provide that where an ‘interested person’13 has alleged that there has been family violence or the risk of family violence, they must file the prescribed form14 (Notice); which is a Notice of Child Abuse, Family Violence or Risk of Family Violence in the Family Court of Australia and a Notice of Risk in the Federal Circuit Court of Australia. Once the Notice has been filed, the courts are required to take prompt action in response to the allegations to protect the child and to enable evidence about the allegations to be gathered as expeditiously as possible.

Cases in which a Notice have been filed will be directed expeditiously to the appropriate decision maker – duty registrar or other judicial officer – for consideration of what steps or type of hearing is necessary for the courts to discharge their obligations pursuant to section 67ZBB of the FLA.

Section 67ZBB requires these obligations to be discharged as soon as practicable and within eight weeks if appropriate.

As a result of the amendments, courts are also required to ask each party to the proceedings whether they consider that the child has been or is at risk of being exposed to child abuse, neglect or family violence (section 69ZQ(1)(aa)(i)). The courts must also ask whether either party to the proceedings considers that they or another party to the proceedings have been or are at risk of being subjected to family violence (section 69ZQ(1)(aa)(ii)).

Formerly, the courts were obliged to make an order for costs when satisfied that a party had knowingly made a false allegation or statement in the proceedings. This included circumstances in which a party had knowingly made a false allegation of family violence. That provision has now been removed from the FLA.

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