Family law

 

Family Law in Victoria is governed by several laws which outline which children are covered by a particular act, in which court a family law matter will be heard, matters relating to a child having an independent lawyer, mandatory dispute resolution, Supreme Court wardship and jurisdictional conflicts.

Introduction and key legislation

The Family Law Reform Act 1995 (Cth), which came into force in June 1996, abolished the concepts of custody, access and guardianship and replaced them with parenting orders, which cover with whom the child is to live and time spent with another person or persons, and other specific issues. The Act encouraged parents to resolve their own problems and to enter into parenting plans rather than to seek an order from a court (s 63B). Any other aspect of parental responsibility not covered by these orders may be covered by a specific issue order. For further information about these matters, see Parental responsibilities and child support.

In Victoria, New South Wales, South Australia, Tasmania and Queensland, children subject to parenting orders include:

1 a child of a marriage;

2 an ex-nuptial child;

3 an adopted child; and

4 a child born as a result of artificial conception procedures (s 60H).

Legal questions of parenting concerning these children are decided in the Family Court of Australia (or in a Magistrates’ Court exercising Family Law Act jurisdiction in limited cases). The Federal Circuit Court also has a limited jurisdiction to deal with children’s matters using simplified applications and procedures.

The Family Law Act 1975 (Cth) (“FLA”) is administered by the Commonwealth and certain state powers have been transferred to the Commonwealth by the Commonwealth Powers (Family Law-Children) Act 1986 (Vic). This has allowed the Commonwealth to extend its laws under the FLA to cover all children in respect of parenting issues in Victoria. This includes children born from a de facto relationship.

Each of the parents of a child under 18 years covered by the FLA is a guardian of the child. If there is a dispute the court can make orders as to the welfare of a child.

Proceedings under the FLA may be instituted by:

1 either or both of the parents;

2 the child;

3 any person who has an interest in the welfare of the child; or

4 a grandparent of the child.

An order as to the welfare of a child cannot be made if the child is over 18 years, married or in a de facto relationship (s 65H(1) FLA). An order ceases to have effect if a child turns 18, marries or forms a de facto relationship.

In any dispute over parenting issues, it is first necessary to decide which law applies.

Children covered by the Family Law Act

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) came into effect on 1 July 2006. Among the most significant changes brought about by the Act was the requirement that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility (s 61DA FLA).

“Parental responsibility” is defined in section 61B of FLA as “all duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Parents with “shared parental responsibility” must consult each other in making decisions about major long-term issues regarding the child and make genuine attempts to come to joint decisions (s 65DAC FLA).

The presumption that it is in the best interests of the child for parents to have equal shared parental responsibility can be rebutted if there are reasonable grounds to believe that a parent has engaged in abuse of the child or engaged in family violence, or if it is not in the best interests of the child for the parents to have equal shared parental responsibility (s 61DA FLA).

If the court finds that the presumption applies, it must consider whether the child spending equal time or substantial and significant time with both parents would be reasonably practicable and in the child’s best interest. “Substantial and significant time” is defined in section 65DAA(3) FLA as including both weekends and weekdays, allowing the parent to be involved in the child’s daily routine. In deciding whether an order is “reasonably practicable”, the court must have regard to the distance between parents’ homes, the parents’ capacity to facilitate the arrangement, the parents’ capacity to communicate with each other and resolve difficulties, and the impact of the arrangement on the child (s 65DAA(5) FLA).

Section 60CC of the FLA, which replaces repealed section 68F(2), lists the factors taken into account by the court in determining orders for the best interests of the child. The factors are divided into “primary” and “additional” considerations.

The primary considerations are:

the benefit to the child of having a meaningful relationship with both parents; and

the need to protect the child from physical and psychological harm resulting from exposure to abuse, neglect or family violence (s 60CC(2)) FLA.

Additional considerations include:

any views expressed by the child;

the likely effect of any changes in the child’s circumstances; and

the practical difficulty and expense of the child spending time with each parent (s 60CC(3)).

The court must also consider the extent to which each of the child’s parents has fulfilled their responsibilities as a parent (s 60CC(4)). For parents with whom the child is living, such responsibilities include facilitating the other parent spending time with the child and communicating with the other parent about major long-term issues in relation to the child. For parents who do not live with the child, such responsibilities include paying child support and taking opportunities to spend time with the child.

Independent children’s lawyer

There is a special provision in the FLA that allows a judge to order that a child be represented by an Independent Children’s Lawyer (ICL) in Family Court proceedings (s 68L). The role of the ICL is to form an independent view of what is in the best interests of the child and inform the court of that view.

The ICL is not bound by a child’s instructions, but acts on the basis of the child’s best interests. Legal representation is generally funded through Victoria Legal Aid.

Children not covered by the Family Law Act

Certain children affected by state welfare law are not covered by the FLA.

The FLA does not cover a child in the care of a person under a child welfare law (s 69ZK). However, the Family Court can make an order that is expressed to take effect when the child ceases to be the subject of child welfare law.

The state welfare law, which overrides the FLA, is contained in statute law and common law. The statute law is the Children, Youth and Families Act 2005 (Vic) (“CYFA”) and the common law is the inherent supervisory jurisdiction of the Supreme Court.

Mandatory dispute resolution

It is important to note that, under section 60I of the FLA, it is necessary for parties to attend formal mediation prior to initiating proceedings in the Federal Circuit Court, Family Court or Magistrates’ Court. Victoria Legal Aid provides a dispute resolution service that can be utilised if both parties are represented. It is possible to obtain an exemption in circumstances involving child abuse or family violence (s 60J FLA), where one party refuses to attend or where a dispute resolution practitioner believes that the process is inappropriate in the circumstances of the case (s 60I).

Supreme Court wardship

The Supreme Court still retains its parens patriae equitable jurisdiction to make a child a ward of the Supreme Court. This should not be confused with guardianship to the Secretary of DHHS (seeMagistrate’s order” in The Children’s Court).

It should be noted that such Supreme Court proceedings now rarely occur and may be subject to transfer to the Family Court under cross-vesting legislation.

Jurisdictional conflicts

Legal decisions concerning the welfare of children can be made in a number of different courts. It would be possible in Victoria for a child to be simultaneously the subject of proceedings for adoption (County Court), an offence, a permanent care application or protection application (Children’s Court), and with whom a child lives (Family Court).

Which court’s orders are of paramount effect is a difficult question that has not been entirely resolved. The position will remain unclear until there is either a further legislative amendment or a decision by an Appeal Court.