Take Home Paper – Taylor Henderson
This advice is in response to Taylor Henderson’s instructions relating to her children and ex-partner, David Henderson. It is my obligation to inform Taylor that any arrangements ordered by the court must be made with the children’s best interests as the paramount consideration so far as reasonably practicable. A child’s best interests are met if both parents have a meaningful relationship with the children, and if the parents ultimately protect the children from physical or psychological harm imposed through abuse, neglect or family violence. In assessing the children’s best interest, greater weight is given to the protection of the child.
Family Violence
1. It has been identified that there was a domestic cross-order between Taylor and her ex-partner David that ceased operating 12 months ago. Mandatory terms of good behaviour and abstinence from committing acts of domestic violence were imposed for a period of two years. It is important to note that there is an obligation to inform the court of the order. It is imperative to better understand the circumstances of the domestic violence order as the court will consider family violence in parenting cases. Fundamentally, the court must ensure that children are protected and out of risk from exposure to any physical or psychological harm or violence. If it is found that there is ongoing family violence, the court will apply five principles to follow in deciding parenting cases. The courts will;
• Consider the needs of the children, and the impact that the conduct of the proceedings may have on the child.
• Actively direct, control, and manage the conduct of the proceedings.
• Conduct the proceedings in a way that safeguards the children from being subjected or exposed to abuse, neglect, or family violence.
• Conduct proceedings, so far as possible, in a way that will promote cooperative and child-focused parenting by the parties.
• Conduct proceedings without undue delay and with as little formality, and legal technicality and form, as possible.
If there is no family violence found to be ongoing, the parenting proceedings will proceed on the rebuttal presumption that equal shared responsibility is in the best interest of the children. The parents are also required to make a genuine attempt to resolve their issues and obtain a family dispute resolution certificate. This certificate can be issued to demonstrate;
• That one party refused or failed to attend family dispute resolution,
• That the practitioner ultimately decides it would be inappropriate to conduct the family dispute resolution or continue the dispute resolution, or
• If all parties attended and made a genuine effort to resolve their issues or did not make a genuine effort to resolve their issues.
If there is family violence found, the parties will not have to participate in dispute resolution. Taylor will have to complete an affidavit containing any allegations of continued violence to submit as evidence to the Court.
Parental Responsibilities – Decision-Making
Recovery Order/Withholding the Children
2. Taylor has instructed that David has made a unilateral decision to withhold the children and refuses to let them spend time with her until the court orders as such. It is in the best interest of the children to recover the children and ensure they are in the care of both parents and not subject to parental conflict. If the children have continued to be to be exposed to the parental conflict where each parent makes unilateral decisions regarding the children’s care and education, the children continue to be at risk of the poor outcomes in regards to their psychological and physical health and educational performances. If the Court hands down an interim parenting order, Taylor may apply for a recovery order to return the children to her care.
3. It is made clear within the Family Law Act that it is in the best interest of the child to have the benefit of both of their parents having meaningful involvement in their life. In preventing the children from contacting their mother, David may be exposing the children to unnecessary psychological harm and may even constitute family violence. The Family Law Act stipulates that preventing a family member from making or keeping connections with his or her family is a form of family violence.
4. I will be submitting that interim orders include a recovery order to compel the father to return the children and maintain agreed upon living arrangements until a Family Report can be compiled to ascertain the best permanent arrangement.
Schooling Dispute
5. Taylor has instructed that there is a dispute regarding which school their eldest child is to attend. Taylor wishes to send the child to Cairns Grammar School with split costs for the school’s renown educational prestige, and David wishes to send the child to Cairns Christian College where he attended. In sharing equal parental responsibilities, both parties should make a genuine effort to resolve all major issues including education within the child’s best interests. It is recommended that the parents make a genuine effort to reach a joint decision at family dispute resolution. If unable to reach a resolution, the court will take into consideration the practicality and distance of the school from both parents’ residence, the overall long-term plans for raising the child, and any other matters it finds relevant. If the father is proposing Cairns Christian College to have his children experience Christian culture and religion, it is the right of the child to experience that culture and tradition. Furthermore, if David has not agreed to the child attending a specified school, he may not be liable to contribute to those expenses unless it is a matter concerning the child's welfare which requires attendance at that school. However, pursuant to Wild v Ballard, consent is only required for a child attend private schooling, not a specified private school. If Taylor can obtain consent to send the child to private schooling instead of public schooling, she may be able to claim extra maintenance to cover the cost of that school.
Name Change Dispute
6. Taylor wishes to revert to her maiden name and have the children’s name hyphenated. As she and David share equal parental responsibilities, they are to make a genuine effort to resolve all major issues, including the children’s name. The Court will assess various factors when determining whether to change a child’s name, including:
• Any embarrassment or discrimination the child is likely to suffer if their name is changed;
• The potential for confusion of identity;
• Any effects change may have on the relationship between the children and the parent whose name the children originally bore;
• The effect of frequent or random changes in name;
• The standard of contact and relationship the children and non-custodial parent has had and is likely to have in the future;
• The degree of identification that children have with their current name.
Taylor will be unlikely to succeed in her application. Pursuant to Darley v Darley, the Court did not allow the mother to change the children’s surname for the following reasons:
• The children’s current surname was the only name they were identified with;
• A change in the children’s surname would likely result in increased animosity between both parents resulting from the father’s resentment;
• The children would be unlikely to suffer any embarrassment or discrimination if their surname was different to their mother’s;
• The mother had also been known by the same surname since the date of her marriage.
Parental Responsibilities – Care of the Children
Parental Neglect – Rebuttal of Equal Shared Responsibilities
7. Taylor has instructed that she wishes to rebut the equal-shared responsibility as it is disruptive to children. It is alleged that the father acting contrary to the section 60CC factors by returning the children in dirty clothes, hungry, misbehaving, and that their school grades have dropped since previous year. The court will always start at the presumption that it is in the best interests of the child to have equal shared responsibility amongst their parents. To obtain sole responsibility, the onus is on Taylor to prove that David is subjecting the children to neglect, not providing adequate and proper parenting which is preventing them from reaching their full potential, and not satisfying is responsibilities concerning the care, welfare and development of the children. The Court must still consider the interests of the child spending equal time with each of the parents within an interim hearing, and will only impose orders contrary to the presumption if shared parental responsibility will conflict with the best interests of the child. This onus will only be satisfied with evidentiary proof that it is in the child’s best interests to not spend equal time with both parents because he poses an unnecessary risk.
If Taylor is unable to prove that it is not in the children’s best interests to spend equal time with both parents, a parenting order providing for shared parental responsibility will be ordered. It will then remain both parents’ responsibility to consult the other person in relation to major long-term decisions requiring resolution, and to make a genuine effort to come to a joint decision on that issue.
Substantial and Significant Time
8. If Taylor is successful in proving that it is not appropriate and not in the best interests of the children to maintain equal parental responsibility, she may apply to have a substantial and significant time order. A substantial and significant time arrangement grants one parent primary residence with the children, whilst providing substantial and significant time to the other parent to maintain a meaningful relationship with the children. In assessing the practicability of equal time or substantial and significant time, the court will have regard various conditions. As Taylor and David live less than 10 minutes apart and 10 minutes from the school, the distance in residence will not provide any issues. The fact that the parties have a proven inability to communicate and resolve disputes, and the effect that has on the children, may impinge on a successful application. Ultimately, any order made must be made with the best interests of the children as the paramount consideration.
Supervised Visitation
9. Taylor has instructed that she would like David to only have supervised visitation with the children. It is considered the best interest of the child to have meaningful relationships with both parents. Taylor is unlikely to succeed in an application to have David’s visits supervised unless she is able to prove that David is an unacceptable risk to the children. Unless Taylor further advises of incidents of violence towards the children or other persons or incidents of sexual abuse, the only risk David may need supervised is the risk of abduction. If this risk is proven, it is recommended that the children’s paternal grandparents supervise David when he spends time with the children.
Grandparent’s Rights to Visitation
10. The children spend every Wednesday afternoon until Thursday afternoon in the care of their grandparents. It is considered contrary to the best interests of the child to discontinue or disallow a meaningful relationship with extended family, including paternal grandparents. The Courts recognise that grandparents play a vital role in the upbringing of children, particularly in instances where the grandparents have been actively involved in the children’s care and have sustained benefit in the children’s lives. In the application for parenting orders, Taylor should consider the children’s benefit in maintaining a meaningful relationship with the children’s paternal grandparents. This will avoid potential for further litigation and potential psychological distress of the children.
Family Law Report
11. It would be in the best interest of the children to have an independent assessment completed by a Court appointed family consultant. A Family Report is the best way to explore issues in contention and to ascertain the best outcome for the children. The family consultant will explore all relevant issues and circumstances, including the children’s views on the matter(s). The consultant will then recommend the best arrangements for the children’s future care, welfare and developmental needs with consideration of the children’s views. Family Reports must be kept in complete confidence, and most not be shown to other people without the Court’s permission. It is an offence to publish to the public any part of proceedings that may identify a party, witness, or other person. Taylor’s children would obtain the most benefit in having their voices heard, and having an independent professional ascertain the true level of risk or harm David may be inflicting.
Case Advancement – Interim Order
i. Schooling
It is in the child’s best interests for Taylor and David to attend mediation and resolve the issue of schooling. Taylor should consider the benefit of the children attending a Christian College if they have/had a religious upbringing with their paternal side. If Taylor is to enrol the child into her school of choice without the consent of David, he likely will not be liable to financially contribute. We will seek an injunction to have David attend mediation to discuss the matter further. Within mediation, if Taylor can obtain consent to send the child to private schooling, she may be able to claim the cost of schooling.
ii. Recovery Order
Upon having an interim order imposed, it is in the best interest of the children for David to return the children to the care of their mother and desist from limiting their regular communication with their mother. The interim order will then be carried out by both parties so as to maintain meaningful relationships with both parties and other relevant family members until parenting orders are imposed.
iii. Family Report
The family report should explore the following issues:
a) The children’s views on the school they wish to attend;
b) The children’s views on the current living arrangements;
c) How the children are affected by both parents’ conduct toward the other parent;
d) Whether the children feel any threat or risk when in either parents’ care.
iv. Living arrangements
a) Equal Shared Responsibility
It is in the best interest of the children to maintain equal shared responsibility of both parents until further information is obtained about the treatment of the children in their father’s care. If there is no unacceptable risk of neglect or harm, Taylor and David should maintain the current agreement, including the paternal care of the children.
b) Significant and Substantial Time
If it is found that David poses an unacceptable risk of neglect or harm, Taylor should have sole parental responsibility and custody of the children. Taylor will ensure that David’s time with the children includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, and ensure that he is still involved in the children’s daily routine and occasions or events that are of significance to the child. She will also notify David of any major long-term decisions made relevant to the children as soon as reasonably practicable.
c) Supervised Visitation
If Taylor is able to prove that David poses an unacceptable risk, it is recommended that the children’s paternal grandparents supervise David when he spends time with the children to prevent any exposure to harm or neglect, and ensure that he is not a risk of abduction.