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DE FACTO Definition “A de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who

are not married to one another or related by family. Property (Relationships) Act 1984 Under the family law act 1975 section 4AA, a de facto relationship can exist between two people of the same sex and a de facto family is provided with a lot of the privileges married couples have, given they can prove they have a bona fide relationship. Since March 2009, due to the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, same sex de facto couples are now treated under the Family Law Act 1975, as de facto partners. Therefore, if at any time, the party had a child they too will be included as the partner’s child

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Without the court: A property settlement or a financial separation agreement must be finalised within twelve months following the separation. This achieves a result without court intervention (under s 90C and s 90UD of the Family Law Act 1975. The benefits of settling it without the court include: o The parties get to make their own choices o It significantly reduces financial and emotional costs o More open communication – conflict resolution procedure o Much easier to move forward, no ongoing, lengthy court process

With the court: The court may be involved if the duration of the court was at least two years children are involved or one party contributed much more than the other. The court will judge based on the contributions made to the marriage by each party, such as in Powell v Suprenscia, where a de facto couple took their separation to the court and Suprenscia was paid a significantly larger amount due to the fact she contributed much more to the relationship than Powell. The court may also consider future needs of each party The court may adjourn proceedings if the financial circumstances are about to change and it would be wiser to sort out at a future date Maintenance – Under the Family Law Act 1975, a spouse qualifies if: o They are caring for a child under 18 o They cannot work due to physical or mental incapacity They must claim before two years elapse since the end of the relationship

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Parenting Orders by Consent will ensure both of you are legally recognised with equal parental responsibility for making long term decisions about the care. or o obtaining parenting orders from the Family Court. One of the parties to the relationship. Sperm donors are not recognised as fathers Where a sperm donor/surrogate has been used. both parties are considered the baby’s parents. - - - - - - - Re Mark (2003) – Through a surrogacy agreement in America. and you cannot agree on parenting arrangements. which can make orders that a particular person is legally the parent of a child and therefore has parental responsibility for that child. If you and your partner separate. and were given a consent order under the Family Law Act 1975.which can be a long and expensive process. under the Family Law Act 1975 that the sperm donor is not considered the father in this situation.CHILDREN and de factos Amendments to the Status of Children Act 1996 granted lesbian couples the same parental rights of heterosexual couples. Consent Orders will ensure the Court recognises you both have parental responsibility for your child] Re Patrick(2002) – A homosexual man donated his sperm to a lesbian couple with the impression that he would receive regular contact with the child. A set of Consent Orders will also ensure you are both legally recognised by schools. was also the biological parent of the child. there are only two ways that the intended parents can legally formalise their parental rights. The couple were granted it based on “best interest of the child”. sporting clubs and other institutions as having rights in decision-making for your child. it is also a good idea for lesbian couples to obtain parenting orders to protect both partners’ roles as parents – particularly the partner who is not the child’s biological mother. a homosexual couple had a baby. It does not prove who has parental responsibility for the child on a long term basis. The Family Court determined. Mr X. welfare and development of your child. A birth certificate only records the names of a child’s parents at the date of birth. treating practitioners. . If one party gives birth to a baby due artificial conception procedures. However the court granted him contact anyway. Although the rights of lesbian parents are now protected by law. These are by: o adopting the child . They applied to the Family Court for recognition of parental rights. as court verdicts are made on a case by case basis.

such as grandparents. All parents have the responsibility to promote the best interests of their children. You may be referred for reconciliation or separation counselling or for mediation. Family Relationship Centres . When an agreement is reached it can be made legally binding by ‘consent orders’. Under the Family Law Act. If there is a high level of emotional conflict or hostility. where the children will live. How to vary orders as the needs of the children or parents change.Family dispute resolution . Except when a child is at risk of abuse or neglect or it is contrary to a child’s best interests. The allocation of parental responsibility. responsibility to ensure children receive adequate and proper parenting. They share the responsibilities for making decisions about major long-term issues. children have the right to live or spend time with both their parents and other people significant to their care. . In most cases. What are my responsibilities as a separated or divorced parent? Married or not. mediation. Now you may seek parenting or shared parenting orders.people can have three hours of free advice and assistance about their separation issues. how much time children will spend with the other parent and child support. arbitration. family dispute resolution. but continues until each child reaches at least the age of 18. collaborative law and child-inclusive processes. Consultation between parties where there is shared parental responsibility. welfare and development. a power imbalance or domestic violence. some of these methods may be inappropriate. parental responsibility for children does not end with separation or divorce. Court will make parenting orders on application if you can’t reach an agreement. including orders dealing with:      The person or persons with whom a child is to live. The time a child is to spend with the other parent. Some parents choose to use parenting plans which are less formal. Often it is useful to reach a short-term or interim agreement on matters such as occupation of the home.negotiation. it will be necessary for both parties to attend at family dispute resolution or mediation with a registered family dispute resolution practitioner before they can start proceedings for parenting orders. Parents should try to agree about matters concerning their children.

Practical difficulties and expense in seeing a child. including the emotional and intellectual needs of the child. or there are other reasons that it is not in the best interests of the child. but not necessarily equal parenting time. the Court must consider if substantial and significant time would be in the child’s best interests. The attitude to the child and responsibilities of parenthood shown by the parents. sex. maturity etc. then the Court should not order equal shared parental responsibility. The additional considerations include (Defined by Family Law Amendment (Shared Parental Responsibility) Act 2006):          The views of the child and the weight which the Court should give to their views. Any family violence involving the child or a member of the family. The nature of the relationship of the child with each parent. The maturity. The Court has regard to a list of primary and additional considerations to determine what is in the child’s best interests. If equal time is not appropriate. The capacity of each party to provide for the needs. depending on age. If there has been abuse or violence seen by or involving the child.Best interests of the child Court presumes that it is in the best interests of the child to have equal shared parental responsibility. The willingness and ability of each parent to encourage and facilitate the other parent’s involvement with the child. life-style and cultural background of the child and parents. What is in the best interests of the child is the paramount consideration for the Court. . The primary considerations are the right of children to know their parents and to be protected from harm. including the right to enjoy their culture. How any change might affect the child.

Check any agreement you make with your spouse on shared parental responsibility for children. prepare documents in support of your application to establish that it is in the best interests of the children for the Court to make the orders you seek. . and sometimes paramount. it may be necessary to obtain an Apprehended Domestic Violence Order from a Local Court. However. Collaborative lawyers will help you to resolve all issues without going to Court. In serious or urgent cases. Advise you if you may be entitled to Legal Aid. Present your case or engage a barrister to represent you in Court if it must go to a hearing. Assist you to negotiate parenting orders or refer you to a counsellor or mediator. Often the Court will appoint an independent children’s lawyer to represent the child. Help you to enforce or consider a variation of your parenting orders. Many cases are resolved once a family report is prepared by a family consultant or counsellor. The principle of the best interests of the . Tell you which method of primary dispute resolution may be best for your case. in actions and decisions concerning children. The Best Interests of the Child The principle of 'the best interests of the child' is set out in the United Nations Convention on the Rights of the Child (CRC). threats or verbal abuse occur in your relationship. Interview your witnesses and prepare affidavits of their evidence. a police officer may seek the order on your behalf. It makes the best interests of the child at least 'a primary consideration'. The Court often requires parents to meet with a family consultant to try to reach agreement on orders to be made. If you must apply to the Court. The CRC was adopted in 1989 and ratified by Australia in December 1990. Apprehended Domestic Violence Orders If violence. Normally it is easier to change the provisions of a parenting plan. the Court will only change those orders if it is satisfied that there has been a significant change in circumstances to justify the orders being varied. How will a solicitor help me? Your solicitor can:           Advise you of your legal rights. tell your Solicitor who will advise you how to obtain an order to protect yourself and your family. Court hearings in children’s matters are less adversarial than they previously were.How to change parenting arrangements Once parenting orders are made. If you are afraid of your partner or a family member. parenting plans do not have the same enforceability if they are breached.

Child protection and custody .1 States Parties shall ensure that a child shall not be separated from his or her parents against their will.article 3.1 In all actions concerning children. that such separation is necessary for the best interests of the child.article 18. A primary consideration . administrative authorities or legislative bodies. in accordance with applicable law and procedures. Adoption . In particular cases best interests may be the paramount consideration. except when competent authorities subject to judicial review determine.article 9. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. .3 States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis. or one where the parents are living separately and a decision must be made as to the child's place of residence Continuing contact with one or both parents . The CRC defines 'children' as everyone under 18 years. except if it is contrary to the child's best interests. Parental decision-making .1 States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. courts of law. whether undertaken by public or private social welfare institutions. This Brief provides information on:           The sources of the principle of ‘the best interests of the child’ Which actions are affected? Whose actions are covered? What are the child's best interests? Are other considerations permitted? Best interests in Australian law Practitioner checklist Select bibliography Cases Websites The sources of the principle of ‘the best interests of the child’ Generally the best interests of the child are a primary consideration in all actions concerning children.article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration.article 9.child is one of the fundamental principles of the CRC underpinning the interpretation of all children's rights and freedoms. the best interests of the child shall be a primary consideration.

but also when it regards or touches them. it is the best interests of that individual child which must be taken into account. some points are very clear from the CRC. Parents' decision-making in the course of the upbringing and development of their children must make the children's best interests the basic concern as set out in article 18. it is in children's best interests to develop respect for human rights . according to Mason CJ and Deane J in Ah Hin Teoh. or of children generally. said the High Court majority in Marion's Case. It is not confined to actions and decisions concerning the rights and freedoms set out in the CRC. legal guardians.1 covers decision-making by all three arms of government: legislative. care and protection must make children's best interests the paramount consideration.1 applies widely to all actions concerning children. Back to Top What are the child's best interests? The CRC does not explicitly define a child's best interests. Private social welfare organisations are also required to take the best interests of children into account (article 3. In other decisionmaking the best interests of the child. 3.1). 2. Back to Top Which actions are affected? Article 3. Even so. An action 'concerns' children not only when it is directly about them. have the primary responsibility for the upbringing and development of the child. It is in a child's best interests to enjoy the rights and freedoms set out in the CRC. For example.1. Even if the child is not the object of the decision. is more likely to achieve the objects of the convention'. 1. or in reference or relation to them. It also governs decisions by public social welfare institutions. The term is 'imprecise. Back to Top Whose actions are covered? Article 3. Government decision-making relating to custody. In the case of actions and decisions affecting an individual child. must be a primary consideration. the principle applies if the decision affects her or him. but no more so than the "welfare of the child" and many other concepts with which the courts must grapple'. administrative and judicial. The best interests of the child will be their basic concern. 'A broad reading of the provisions in Art. The High Court held the authorities ought to have taken into account the effects on the children of their father's deportation.Parents or. contact. one which gives to the word "concerning" a wide-ranging application. The decision at issue in that case concerned a father's deportation. as the case may be. residence.

but because it is necessary to enable her to lead a life in keeping with her needs and capacities. Article 3. 3. such as religious or economic considerations. But this discretion is restricted. 5.3). As summarised by Mason CJ and Deane J in Ah Hin Teoh.1 for example).2 and 30). asking whether the force of any other consideration outweighed it'. 'regard will be had to the various measures now available for menstrual management and the prevention of pregnancy'.and for other cultures (article 29. In Marion's Case the High Court stipulated that sterilisation is a 'step of last resort'.1(b) and (c)). It is in a child's best interests to maintain contact with both parents in most circumstances (article 9. By providing that the best interests of the child are 'a primary consideration' rather than theprimary or the paramount consideration. particularly those from vulnerable groups. A child capable of forming a view on his or her best interests must be able to give it freely and it must be taken into account (article 12).1 allows decision-makers to balance the best interests of the child against 'equally weighty' primary considerations of their own choosing. 4.1) but. 8. article 3. In the case of a young woman. Where the CRC makes the child's best interests the paramount consideration it would be very rare that any other could justify setting aside those interests. '[I]f authorisation is given. In Australia an example of a decision taken out of parents' hands altogether is whether to have a child with a disability sterilised. the State may intervene to protect those interests (see article 9. The Committee on the Rights of the Child has often advised governments that they should ensure spending decisions are made with due regard for the best interests of children.1 provides for a child's interests to be among the first considerations rather than requiring them to be the first considered or favoured. Back to Top .' Back to Top Are other considerations permitted? Other considerations are clearly permitted by the general principle. It is in the best interests of Indigenous children to be raised in the Indigenous community (articles 5. if they fail to make the child's best interests a basic concern. it will not be on account of the convenience of sterilisation as a contraceptive measure. Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18. '[A] decision-maker with an eye to the principle enshrined in the CRC would be looking to the best interests of the children as a primary consideration. There are circumstances in which the community or other parties might have equal or even superior interests so that a child's interests may not prevail.

education department. be made the subject of a report to the Attorney-General for tabling in Parliament. it is not part of Australian law. But the CRC is scheduled to the Human Rights and Equal Opportunity Commission Act 1986(Cth). identify the decision-maker. If the decision-maker is covered by the CRC. that discretion should be exercised in conformity with Australia's international treaty obligations. after appropriate inquiry. Whose actions? a. Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may. It is also now accepted 'that a statute is to be interpreted and applied. although the CRC has not been implemented in Australian law. so that it is in conformity and not in conflict with the established rules of international law' and that 'an international convention may play a part in the development by the courts of the common law' (Mason CJ and Deane J in Ah Hin Teoh). Where legislation permits a discretion. its ratification by Australia had given rise to a legitimate expectation that decision-makers would take its provisions into account. Back to Top Practitioner checklist 1. The Commission has no authority over the courts. Where Australian domestic law sets a higher standard it must not be diluted (article 41). the Commission can only advise the Parliament that the legislation should be amended. Best interests considered? a.Best interests in Australian law The CRC establishes minimum standards. list the relevant actions and decisions and. The CRC is not directly implemented in Australia. the higher standard must be retained. as far as its language permits. In Ah Hin Teoh the majority held that. police. The High Court has imposed an obligation to consider human rights in cases of discretionary administrative decision-making. for example. for each. This gives the Commission power to investigate complaints that the CRC rights have been violated by or on behalf of the Commonwealth or a Commonwealth agency but only in the exercise of a discretion or in abuse of power. Concerning a child? Does the action or decision complained of affect a child or children (eg denial of Parenting Payment)? 2. Where legislation requires the right of the child to be set aside. Is the decision-maker covered by the CRC (eg Centrelink. department of families. community services and indigenous affairs?) 3. the best interests of the child are the paramount consideration when the CRC only requires primary consideration. If. b. did it take the child's best interests into account? . If a child is affected.

Rights and the Law. Commonwealth of Australia S Parker. 1992. 1991. (1994) 8 International Journal of Law. United Nations Convention on the Rights of the Child. Raise your concerns with the decision-maker or on review or appeal (eg at the Social Security Appeals Tribunal or in a bail application). Policy and the Family 26 D Sandor. 'How High . Challenging the decision a. explore possible remedies. The United Nations Children's Convention and Australia. community services and indigenous affairs). 17th Report. Back to Top Select bibliography P Alston & G Brennan (eds). U Dolgopol & S Castell-McGregor (eds). (1998) No 19Australian Children's Rights News . Sydney M Freeman. Press A Asche.b. b. Policy and the Family 360 J Harvey. (1997) 11 International Journal of Law. 4. If you are unable to judge. S Parker & J Seymour (eds). Were the child's best interests made a primary consideration or the paramount consideration as relevant? d. 5. If the decision breaches the child's rights. First World Congress on Family Law and Children's Rights. HREOC/ANU/ACOSS P Alston.How Far? The Best Interests Principle in Family Law'. 1998. consider submitting a complaint (complaints infoline 1300 656 419).Principles and Problems'. 1993. 'The Best Interests of the Child . If the decision-maker is subject to the Commission's jurisdiction (discretionary decisions of federal agencies such as Centrelink or the department of families. Children. Oxford Uni. 'The Best Interests Principle in Article 3(1) of the UN Convention on the Rights of the Child' in 1994 Congress Papers. contact a specialist youth advocacy or legal centre or your local legal aid office. 'The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of the Children?. Implementing the United Nations Convention on the Rights of the Child in Australia. consider how you might find out. How were best interests defined? Were the child's views taken into account (if the child is capable of forming a view)? Were the parents' views taken into account? c. Specialist advice For assistance. South Australian Children's Interest Bureau Joint Standing Committee on Treaties.

Since 2005 the Courts have been required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. LEGISLATION De facto: Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 & Property (Relationships) Act 1984 Family Law Act 1975 A property settlement or a financial separation agreement must be finalised within twelve months following the separation. s61B of the Family Law Act 1975 as “all the duties. you may have grounds for an application. it is not necessary for parties to have satisfied the abovementioned definition of a de facto relationship in order to apply for parenting orders. You can apply for Court orders stipulating the times and days on which you wish to see the children. This achieves a result without court intervention (under s 90C and s 90UD) Parental responsibility. They will have standing before the court as mother or father. by law. Martinus Nijhoff Publishers Back to Top Cases Ah Hin Teoh: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 In the matter of B and B: Family Law Reform Act (1997) FLC 92-755 Marion's Case: Secretary. If your role as a parent is being unreasonably diminished. powers. responsibilities.” . Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 Parenting Issues for De facto couples Where there are children of a de facto relationship. and authorities which. The International Law on the Rights of the Child. Such orders can provide for contact on holidays and other important occasions. 1995.G van Bueren. parents have in relation to children.

lengthy court process With the court: The court may be involved if the duration of the court was at least two years children are involved or one party contributed much more than the other. a) abuse of that child. or b) family violence.The Court must now apply a “rebuttable presumption” contained in s61D of the Family Law Act that it is in the best interests of children and parents to have a shared parental responsibility. The benefits of settling it without the court include: o o o o The parties get to make their own choices It significantly reduces financial and emotional costs More open communication – conflict resolution procedure Much easier to move forward. The court may also consider future needs of each party The court may adjourn proceedings if the financial circumstances are about to change and it would be wiser to sort out at a future date Maintenance – Under the Family Law Act 1975. Care Act. a spouse qualifies if: o They are caring for a child under 18 o They cannot work due to physical or mental incapacity They must claim before two years elapse since the end of the relationship - - - . the Children’s Court can make care orders if it’s satisfied that ‘on the balance of probabilities’ the Children require care/protection. less pay. no pay. Spend 65%. no ongoing. where a de facto couple took their separation to the court and Suprenscia was paid a significantly larger amount due to the fact she contributed much more to the relationship than Powell. The court will judge based on the contributions made to the marriage by each party. s71 and 72. S35 Child support assessment act 1989 (cwlth) – new child support formula. more time spent with child. such as in Powell v Suprenscia.

000 children in Australia are the subject of care and protection orders. The budget of NSW's Department of Community Services . around 39.responsible for supporting vulnerable families and keeping children safe from abuse and neglect .prompted action.whose badly decomposed body was found in a tartan suitcase in a pond at Ambervale in October 2007 . Deaths of two-year-old Dean Shillingsworth .is a massive $1.67 billion.000 are in out-of-home care.and the starvation of Ebony. such as foster homes. and more than 37.By Karen Michelmore (cross media reporter) Nationally. . seven.MEDIA The facts on child protection in NSW . a month later at Hawks Nest .