FREE ELECTRONIC LIBRARY - Thesis, documentation, books

Pages:     | 1 | 2 ||


-- [ Page 3 ] --

There are some matters which might be said without detracting from the reality that each case must be considered on its own terms and evidence and ultimately any decision made must be in the best interests of the child or children with all the difficulties and circularity that brings.

First, as I mentioned earlier, it appears that equal shared parental responsibility and equal time or substantial and significant time are less likely to be ordered in contested proceedings before the Family Court.

Where the Court declines to make such orders, those considerations will not impact on the relocation proposal and the decision whether or not to permit a parent to relocate will be made on the basis of the „best interests‟ test, having regard to the objects of the Act, the principles underlying those objects and section 60CC factors.

The most significant potential obstacle for relocation is the concept of meaningful relationships. This I have explored previously and will mean something different to each child. It may be possible for a child and a parent to be able to have a “meaningful” relationship across distance, or it may not be. There may or may not have been a particularly meaningful relationship between the child and one parent post-separation or the relationship may have been destructive for the child and is unlikely to improve over time. It may be that the benefits of relocation are more pertinent to the child‟s best interests than the benefit of a meaningful relationship.

I also wish to emphasise that before a court can make an order that a child spend equal time with a parent, or substantial and significant time, the court must be satisfied such an order is in the child‟s best interests and reasonably practicable.32 The term „reasonably practicable‟ is defined in

section 65DAA(5) of the Act. It requires the Court to have regard to:

–  –  –

The recent Full Court decision in Sampson & Hartnett (No 10),33 whereby an appeal was allowed on the basis the trial judge failed to consider the reasonable practicability of arrangements she then went on to order, demonstrates that „reasonable practicability‟ is an important part of the deductive process judges must follow.

Where a parent is seeking to relocate with a child and the court applies the presumption of equal shared parental responsibility, or where the party opposing the relocation is seeking a substantially shared living arrangement, the court must be satisfied of the practicability of such an arrangement before making the order sought.

Although some of the new provisions (such as those mentioned above) may seem to set relocation cases apart, there is no special category of Ibid s 65DAA(1)(b), (c); s 65DAA(2)(d), (e).

[2007] FamCA 1365.

„relocation cases‟. The abiding criterion is “the best interests of the child” and although relocation complicates the consideration of what is best for the child it does not require or indeed allow for a different approach by judges.

The second point is that equal shared parental responsibility may be able to be exercised across distance. If communication and cooperation between the parents is sufficient to conduct a „business-like‟ relationship, it may be that an order for equal shared parental responsibility is possible.

Thirdly, the best interest factors in section 60CC are carefully considered by the Court and as such if relocation is in a child‟s best interests, that is what will be ordered. This is the same position as before the amendments to the Act.

The Less Adversarial Trial Among the changes made to children‟s law by the Amendment Act was the introduction of Division 12A. This Division contains principles for the conduct of less adversarial proceedings in children‟s cases. The Family Court of Australia gives effect to Division 12A through the Less Adversarial Trial (LAT) process. As Professor Chisholm observed in a recent article, the words “less adversarial” refer to court proceedings that depart in significant ways from the distinctive, traditional common-law model of court proceedings.34 One of the benefits of LAT is that the judge is actively involved in running the case, including refining the issues in dispute and directing the Richard Chisholm, „Less Adversarial Proceedings in Children‟s Cases‟, (2007) 77 Family Matters 28.

evidence to be filed. Additionally, many of the rules of evidence (such as the hearsay rule) do not apply unless the Court forms the view that special circumstances exist that warrants their application. This is frequently the case where the matters in issue may require a determination that one party has committed a criminal act or other serious allegations are made and the interests of justice and fairness require a more traditional approach to some parts of the evidence.

The benefit is proving to be substantial even in complex cases. By taking control away from the lawyers and speaking directly with the parties, judges are often able to get a perception of the relationship between the parents, the aspirations the parents have for the children and what the matters really in dispute may be.


In summary, while the legislature has injected more direction into the process of making orders about children, the basic and overarching principle of the best interests of the child prevails. Each case must be considered on its on merits and all relevant evidence must be evaluated.

The fact that some parents have their disputes determined in the Family Court will probably indicate that the process of finding facts, evaluating factors and balancing these matters to arrive at a conclusion will regularly give rise to disagreement about the outcome from one, if not both, parents.

Perhaps what is of more concern for the future are those who bargain in the shadow of the law. The Court and, to some extent the legislature, cannot know if agreements reached outside the court system have been arrived at with knowledge and understanding of what the law is. Sadly, the more prescriptive the law, the less the average citizen may appreciate and understand it and perversely the more likely it is that parties may make decisions contrary to the intention of the legislature because of the inaccessibility of the law.

That having been said, the objectives and the principles of the new legislation are unimpeachable for those who are able to cooperate, communicate and collaborate without fear and who are able to put the interests of their children ahead of their own interests following the breakdown of a relationship. The Family Court will continue to find ways to work with parents and the legislature in the best interests of the children but will do so recognising that every child is an individual and every case is different.

Pages:     | 1 | 2 ||

Similar works:

«PROSPECTUS AIC Art Investment Consulting GmbH (a limited liability company under the laws of Austria, registration number FN 364285p) as Issuer Offering of up to Euro 10,000,000 6% Vienna Art Bond 2013 2018 ISIN AT0000A0ZKT6 Art Investment Consulting GmbH, Vienna, Austria (the Issuer or the Company), intends to issue up to EUR 10,000,000 bonds with a denomination of EUR 1,000 each (the Bonds) on or about 30 April 2013 (the Issue Date) and to offer the Bonds to the public in Luxembourg, Austria...»

«FISCAL ADMINISTRATOR LAW 10/2015 The Fiscal Administrator Law R.S. 39: 1351 1356 Overview: The following document is a summary of general principles and guidelines concerning the Fiscal Administrator Law. This document is presented in a “frequently asked questions” (FAQ) format. While the FAQ is fairly detailed, remember that every situation is unique and that each situation deserves careful individual review. To facilitate use of this document, numerous links within the document will...»

«Diminished Responsibility as a Defence in Ireland ha ying Regard to the law in England, Scotland and Wales Faye Boland Submitted in accordance with the requirements for the degree of Ph.D. The University of Leeds Centre for Criminal Justice Studies Faculty of Law April 1996 The candidate confirms that the work is her own and that appropriate credit has been given where reference has been made to the work of others. Acknowledgements No words can express the debt of gratitude I owe to Professor...»

«South Carolina Property Tax 2010 Edition Governor Mark C. Sanford Ray N. Stevens, Director Disclaimer This publication does not constitute tax, legal or other advice. The opinions expressed in any section of this publication are the individual opinions of the author of that section and should not be attributed to the South Carolina Department of Revenue. This publication is written in general terms and may not contain all of the specific requirements or provisions of cited authority and the...»

«1 Au Pair: Challenges to Safe Migration and Decent Work 2 Au Pair: Challenges to Safe Migration and Decent Work Au Pair Challenges to Safe Migration and Decent Work The host family must respect what the au pair program is and follow the policies. If not, action from the government must take place. The au pair must have concrete laws and policies and must be protected and respected. They need to improve our conditions. (“A”, Filipina au pair in Denmark) GAATW WORKING PAPER 2013 Au Pair:...»

«Sample Selections from THE BEDFORD SPOTLIGHT READER SERIES The Bedford Spotlight Reader Series American Subcultures, Eric Sean Rawson, ISBN 978-1-319-06203-3 (coming in 2017) Border Crossings, Catherine Cucinella, ISBN 978-1-319-02014-9 Composing Gender, Rachael Groner and John O’Hara, ISBN 978-1-4576-2854-2 Critical Reading and Writing: A Bedford Spotlight Rhetoric, Jeff Ousborne, ISBN 978-1-4576-7432-7 (can be packaged for free with any Bedford Spotlight Reader) Food Matters, Holly Bauer,...»

«Livelihoods and Resource Management Survey on the Mekong between LouangPhabang and Vientiane Cities, Lao PDR International Union for Conservation of Nature The designation of geographical Published by: entities in this publication, and IUCN, Vientiane, Lao PDR the presentation of the material, do not imply the expression of Copyright: Cover photo: any opinion whatsoever on the © 2013 International Union for Fishing in the Mekong River, part of IUCN, the Critical Conservation of Nature and...»

«MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jun 30 2016, 9:39 am Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deidre L. Monroe Gregory F. Zoeller Public Defender’s Office Attorney General of Indiana Gary, Indiana...»

«117 Irish Journal of Legal Studies Vol. 1(1) Managerialism in Irish Universities Professor Steve Hedley* “Managerialism” is a term often used in relation to modern universities, sometimes as a neutral description of certain organisational techniques, sometimes as a pejorative expression. This article has three goals. Firstly, I suggest a reasonably precise definition of managerialism in this context. Secondly, against this definition I search for “managerialism” in modern Irish...»

«TEST ACCOMMODATIONS FOR APPLICANTS WITH DISABILITIES Accommodations Available: An applicant who has a disability as defined by the Americans with Disabilities Act may request test accommodations for the Maryland Bar Examination to ensure that he or she receives a fair and equal opportunity to fully demonstrate his or her competence on the General Bar Exam and/or the Out-of-State Attorney’s (“OSA”) Exam. Where to File Request for Test Accommodations: A request for ADA test accommodations...»

«` Different Approaches, Same Goal? Civil Society and the fight against Corruption in Uganda A Paper prepared by Arthur LAROKi for a Workshop Convened by the Inspectorate of Government (IGG) to mark the World Anti-Corruption Day Hotel Africana, Kampala December 2012 The Role of Civil Society in the fight against corruption in Uganda Page 1 About ActionAid International Uganda ActionAid Uganda is a national organisation registered under the laws of Uganda. It is an Affiliate member of ActionAid...»

«OUT the Margins OUTof A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth in Care PRINCIPAL AUTHORS: Rob Woronoff, CWLA LGBTQ Program Director Rudy Estrada, Lambda Legal Foster Care Attorney Susan Sommer, Lambda Legal Senior Counsel CONTRIBUTING AUTHORS: Michelle Marzullo Caitlin Ryan A. Chris Downs H. J. David Ambroz Peter Karys The Child Welfare League of America is the nation’s oldest and largest membership-based...»

<<  HOME   |    CONTACTS
2016 www.thesis.xlibx.info - Thesis, documentation, books

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.