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While every picture tells a story,

Every Story is Different

In the best interests of the children

A perspective of the 2006 amendments to the Family Law Act from the Family Court of Australia

SHARED PARENTAL RESPONSIBILITY IN AUSTRALIAN FAMILY LAW AND THE IMPACT ON CHILDREN

DEPUTY CHIEF JUSTICE FAULKS14 APRIL 2008

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Overview• Introduction• Equal shared parental responsibility• Best interests of children• Meaningful relationships• Violence• Rebuttal of the presumption of ESPR and

equal time• Relocation• The Less Adversarial Trial• Some concluding thoughts

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Equal Shared Parental Responsibility

• Presumption• Rebuttable - what that means• Does not in itself relate to the

time children spend with a parent

• Does not dictate how PR will be shared

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Best Interests of the Children

• The child or children’s best interests are paramount– Primary considerations– Additional considerations

• Need for evidence

• Those who can or will help

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Meaningful Relationships

• No fixed or immutable meaning• Godfrey & Saunders• Meaningful does not necessarily equal optimal

“…courts cannot by order create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible”

(Professor Patrick Parkinson)

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Best interests

Post 2006 the pathway may be different but the destination – to determine what would be in the child’s best interests – remains the same

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Violence

• Width of definition• Difficulties with evidence (AIFS research)• FCoA’s Family Violence Strategy• Magellan• Role of FCoA is not to investigate but rather to

evaluate the evidence• Form 4s (Section 60K)• What happens• The effect of the LAT• Safety and natural justice

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Rebutting the Presumption

• Factors which militate against ESPR

• Recording outcomes

• The legislature cannot make laws to make people co-operate; judges cannot make orders to change human relationships

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Equal time?

• The effect of the presumption

• The rebuttal of the presumption does not preclude of itself either parent seeking equal or substantial and significant time with a child

• Hearing and evaluation of factors identified under section 60CC

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Relocation

• Meaningful relationship vs other factors

• The need for shared time to be practicable

• The importance of evidence

• Again, what is a meaningful relationship may not be an optimal relationship

• Other factors. There is no “happiness” principle!

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The Less Adversarial Trial• Division 12A• Early judicial intervention• Some Rules of Evidence do not apply but it will depend on the nature of the

case• Judicial control• Involvement of the family consultants – the Child Responsive Program• The importance of being able to be heard

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The ideal

People putting children first

People finding solutions from knowledge and goodwill

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The sad reality in many matters before the Family Court

• If parents cannot make the decisions they should, the court will make those decisions

• Bargaining in the shadow of the law

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Putting Children First

• Objects and principles of the new legislation

• What are the best interests?

• How can we put the right matters before the court?

• How can we ensure that every different story is told?

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Every picture tells a story

Every story is different!