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parenting matter

Family Reports in Parenting Matters

In parenting matters, it is more often than not that the Court will make an Order for a Family Report to be prepared. Usually the Court will pay for a Family Report for the parties. However parties can engage a private family reporter where they have the resources to do so, or there is a need for an earlier report that the Court would not be able to obtain in short order. This means that parties might be able to have their parenting issues resolved quicker than otherwise.

A Family Report is a document written by a Family Consultant appointed by the Court. Family Consultants are generally qualified psychologists or social workers with experience working with families and kids. An independent assessment will be made by the Consultant about substantial issues pertaining to the matter at hand and in particular, it will assist the Court in making decisions about children’s arrangements.

Preparation for your family report interview

The primary focus of the report will be in relation to a child’s or children’s best interests and ultimately the report will contain the Consultant’s recommendations about arrangements (short and long-term) that will best meet their future care, welfare and developmental needs.

The Family Consultant would have before the interview read all parties’ materials as well as any materials that have been subpoenaed to best understand and explore the issues relevant to each case. It is therefore important that you read through both your affidavit materials as well as the other party’s materials before attending your interview.

What do you need to be mindful about during the interview?

In some cases, your child/children will be interviewed separately from the parents to give them the opportunity to express their views (more so when older child/children is/are involved). In other occasions, the child/children will be interviewed together with each parent in order for observations to be made of the interaction between each parent and the child/children. There may be some occasions where the Family Consultant will also meet other third parties such as step-parents (or a party’s new partner) or grandparents.

Please be mindful that whilst the Family Report is to remain strictly confidential between the relevant parties within the proceedings, what is said to the Family Consultant is not confidential and will be included in the report. If the matter reaches Final Hearing, it is likely the Family Consultant will be called to give evidence, or cross-examined.

It is important that you put your best foot forward in a Family Report interview. In saying that, here are a few pointers to bear in mind:

·         Prepare in advance by reading all relevant Court materials, make some notes and bringing them with you to the interview;

·         Always be honest. You should voice your concerns clearly but remain child-focused as opposed to engaging in a mouth-off contest about the other parent;

·         Listen and think about your answers carefully before answering them.

What happens after the interview?

The report will be formally released (usually prior to a substantial Hearing) to all relevant parties. This report is strictly confidential and is not to be shown to any third parties including other family members without the Court’s permission.

Judges will often place significant emphasis/weight on the recommendations and views of the Family Consultant due to their expert and impartial status in the proceedings.

If you have any questions about your Family Report or wish for us to prepare you or any other questions regarding your parenting matter, please do not hesitate to contact our experienced family law team on 9614 7111.

Same Sex Parenting

The law relating to same-sex parenting is complex and diverse. Firstly, we need to understand that in Australia, legislative power is divided between the Commonwealth and state governments. What that means is, whilst the Commonwealth Government is primarily entitled to legislate specific issues, those that are not expressly or impliedly vested under the Commonwealth remains within the legislation of the state government. In Family Law for example, the legislative power to determine whom a child should live with post-separation or declaration of parentage rests with the Commonwealth, whilst issues such as adoption, access to assisted conception procedures and surrogacy arrangements is vested in the states. This means that each state may pass legislation that may well overlap the Commonwealth legislation. Provisions in the Family Law Regulations 1984 (Cth) are established to create a link between the state and Commonwealth Family Law Act 1975 (FLA).

In circumstances where the law fails to recognise a person as a legal parent, it may nevertheless be possible for the Family Courts to make a parenting order in favour of such a person (section 64C of the FLA). Section 65C(c) of the FLA states that an applicant can be “any other person concerned with the care, welfare or development of the child”.

In Victoria, the Assisted Reproductive Treatment Act 2008 allows women and lesbian couples to access assisted conception procedures. Certain criteria must be met before a woman and her partner (if any) may access this procedure, for example Victorian Criminal (Police) Record Check and Child Protection Order check prior to commencing treatment. In other states such as New South Wales where Assisted Reproductive Technology Act 2007 applies, different legislation regulates access to assisted conception procedures.

The FLA in 2008 was amended to recognise both members of a lesbian partnership as parents of a child born of an assisted conception procedure (Section 60H FLA). This applies as long as the biological lesbian mother was married to, or is a de facto partner of the other intended lesbian co-mother, and the parties both consented to the carrying out of the procedure.

Meaning to say, in the scenario of a lesbian partnership who had a baby from an anonymous donor and raised this child at separation may apply for a parenting order under this Act – on the basis that the couple has been living together in a de facto relationship/marriage at the time of conception, and that both lesbian parties have consented in writing to the procedure/treatment being undertaken. Otherwise, the non-biological mother may not be legally considered to be the other parent of the child.

Section 13 of the Status of Children Act 1974 (Victoria) states that the man who produced the semen used in the procedure is presumed not to be the father of any child born as a result of the pregnancy, or has no legal status in respect of the chid, whether or not he is anonymous.

The scope of Section 60H of the FLA is limited to a child having two parents. The legislation approach proves to be challenging in more complex scenario, for example, where a lesbian couple and gay male couple choose to co-parent their child conceived through assisted conception procedure, as was in the case of Wilson v Roberts (2010). In this case, the Court found that the two women were the parents of the child, not either of the men.

In a scenario where a gay male couple have a child through ART, this child will have a birth mother (woman bearing the child) and two gay co-fathers. If the child is conceived through intercourse, the gay biological father will be the legal parent with the child’s birth mother. Whilst the birth mother will be the legal parent/mother of the child, the parenting presumption does not favour a gay co-father or gay couple, unless the birth mother allows the couple to adopt the child. Gay male couples also apply to the Family Court of Australia for a parenting order as ‘other people significant to the care, welfare and development’ of the child. Gay male couples who do not formalise their parental rights in this way will not have the legal right to make decisions in relation to their child.

It is also important to recognise that in States where commercial surrogacy is not permitted under State law, then parties who have entered into a commercial surrogacy arrangement (for example, overseas), will not be recognised as parents in the same way as couple who enter into 'altruistic' surrogacy arrangements can be.

Parenting orders covered under the FLA may include parental responsibility involving long-term decisions regarding the child’s welfare or where and with whom the child will live or spend time with. It is important to keep in mind that in considering all scenarios, the FLA makes the best interests of a child as a primary consideration in all decisions relating to children.

File an application immediately if your child is relocated away from you

Often, parents are so shocked or devastated when their former partner takes some sort of unilateral action with their child(ren) that they do not do anything for some months. Recently, an application to list a mother’s application urgently was declined even though her 12-year-old child was unilaterally moved more than 600km away from her by the father in January 2017. This was the matter of Quong & Bush [2017]FCCA1765.

The mother was not granted permission by the Court to have an urgent because the child was not at risk of harm in the current arrangement. These types of decisions are made in the first instance by a Registrar of the Court.

The mother decided to seek a review of this decision by a Judge. Judge Terry concluded that the child was not at risk of harm in the current arrangement and the Court has to prioritise cases involving those children who are at risk of harm. These might include babies who have been take from their primary carer, cases involving severe family violence, cases in which one and sometimes both parents are using ice, cases in which there are serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.  Limited Court resources do not allow a case in which there are no risks of harm issues to be prioritised over other cases competing for judicial time. This emphasises why you should take action quickly, as it emphasises any perceived risk, and worst case, ensures you are listed for hearing sooner.

The Courts are however generally disapproving of a parent unilaterally relocating a child far away from the other parent concerned, unless the relocation can be justified by the existence of some form of emergency or threat to the child or the parent.  Each case is decided based on the individual facts of the case, and there is limited guidance from the Family Law Act as to how these cases should be determined. The discretionary nature of the child’s ‘best interests’ means that it is difficult for parties undertaking relocation to navigate the process on their own.

If you have separated and are thinking about relocating with your children, or you are aware that the other parent is, you should seek advice about the best way to go about it from our experienced Family Law Team by calling 03 9614 7111.