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Existing law
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Amendment
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| Welfare of the child is first and paramount
consideration (s23(1)) |
- Principle is modified to "best interests and welfare of the child" and
shifted to front of Act as the overriding principle
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| The wishes of the child must be ascertained and taken
into account having regard to age and maturity (s23(2)) |
- Principle moved to front of Act
- "Views" of child must be ascertained and taken into account (this must be
explained to the child)
- Court's power to appoint Counsel for the Child to be presumptive if case is
likely to proceed to a hearing and to have a more prominent place in Act
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| Guardianship defined as custody, right of control and
rights of parents (s3) |
- Guardianship is redefined to emphasise parental responsibilities rather than
rights
- Definition provides some illustrative examples of the role of guardians (eg
determining child's name, medical treatment, education and religion)
- Recognition that nature of parental decision-making role is not absolute,
and changes as a child matures
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| Guardianship of a child ends at 20 years or if child
marries earlier (s2&21(1)) |
- Guardianship will end at 18 years (note conflict with New Zealand Bill of
Rights Act 1990)
- Guardianship ends if a child aged 16-18 enters a de facto relationship,
including same-sex relationships, and the parents have consented to that
relationship
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| Both biological parents joint guardians except where
the biological father is not married to the mother and was not living with the
mother at the time of the birth |
- A biological father will be a guardian automatically if married to or living
together with the mother at any time from conception until birth of the child or
in some circumstances if details are included on the birth certificate with his
and the mother's consent
- If not covered by the above the father may apply to a Family Court and he
will be appointed as a guardian unless it is contrary to the best interests of
the child
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| New partners of parents who have taken on day to day
care responsibilities for a child can only be appointed as a guardian by a
Family Court (s8) |
- Both parents will be permitted to jointly appoint a new partner (including
de-facto and same-sex partners) as an additional guardian
- Appointments will be checked by a Family Court to ensure that there has not
been previous proceedings under guardianship legislation, the Domestic Violence
Act or the Children, Young Persons and Their Families Act
- The additional guardian will be required to declare any child abuse or
neglect convictions (such a conviction would mean that the parties cannot use
this process)
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| A mother may seek a paternity order in the Family
Courts. A putative father may only seek a paternity declaration in the High
Court. (s47-50 Family Proceedings Act 1980; s10 Status of Children Act
1969) |
- The Family Courts will be given a broader jurisdiction, along with the High
Court, to make orders concerning paternity, including orders of non-paternity,
on the application of the mother or putative father
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| De facto partner of a mother who conceives using
assisted human reproduction techniques legally becomes the father of the child
(s2, Status of Children Amdt Act 1987) |
- The same-sex partner of a birth mother is deemed a legal parent of a child
conceived using assisted human reproduction techniques provided she consented to
the AHR process
- Places the same-sex partner of the birth mother in the same position as an
opposite-sex partner
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| Parents, step-parents and guardians can apply for
custody orders as of right. Any other person can seek a custody order with leave
of the Court. Only a parent or step-parent may apply for an access order as of
right. Relatives of a child may apply in very limited circumstances
(ss11,15&16) |
- Replace custody and access orders with 'parenting orders' that determine
whom a child will live with and for what periods of time.
- Where the child is not to be in the "day-to-day care" of a person the
parenting order may deal with what contact the person may have with the child
- Near relatives (ie. grandparents, aunts/uncles or siblings), members of
family groups and any other person will be able to seek the Court's leave to
apply for parenting orders (ie covering both custody and access issues)
- If a parent does not have day to day care responsibility the Court must
consider whether and how an order can provide for contact between the parent and
child
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| A party may appeal from a Family Court decision to
the High Court (s31) |
- Any child affected by a court order (that can be appealed by the parties)
will be permitted to appeal to the High Court
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| A Family Court may order a social worker, medical,
psychiatric or psychological report on a child. (ss29&29A) |
- A Family Court Judge will also be able to order a specialist report into the
cultural background of a child
- A party may request that a person speak at a hearing on the issue of
cultural background concerning the child
- A Counsel for the Child may in some circumstances show the report to the
child
- Family Court may restrict a self-represented person's access to a specialist
report if risk to a child or other party's safety
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| Reports of proceedings may only be published with
leave of the Court or in professional publications (s27A) |
- A person may publish a report of proceedings if the report does not include
the name or any information that is likely to lead to the identification of
(among others) the child, a witness or the parties to the proceedings
- Increased financial penalties for publication in breach of rules
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| Court may strike out an application under Court rules
or its inherent powers to prevent abuse of its process |
- Increase powers to dismiss proceedings that are vexatious, frivolous or
contrary to child's best interests
- Family Court may prohibit future applications where there has been a pattern
of persistent vexatious applications
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| To enforce a custody or access order a
party may either apply to vary or discharge the order; seek a warrant to enforce
the order; or seek prosecution if access has been hindered. (ss17, 19&20A
) |
- Courts to have specific role in preventing disputes and facilitating
compliance with orders by:
- expressly spelling out consequences of orders and contravention;
- counselling and mediation where appropriate;
- variation or discharge of the order;
- admonishment;
- awarding compensatory time for contravention.
- Additional penalties for contravention of an order of bonds, and a broader
offence (3 months prison, community service or up to $2500 fine)
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| Only parties, witnesses and people with the Court's
permission may attend guardianship hearings. (s27) |
- Any person who has attended earlier dispute resolution (eg counselling or
mediation) may attend a subsequent hearing
- Court retains power to exclude persons
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| Only married or opposite sex de facto couples can use
Family Court counselling services (s7 & 9 Family Proceedings Act 1980) |
- Same-sex de facto couples will be entitled to access relationship
counselling in the Family Courts
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| Non-custodial parents must pay any costs associated
with supervised access (s16C) |
- Formal supervised contact ordered by a Court will be government funded up to
a maximum number of sessions and if undertaken by approved providers
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| If a child is born using assisted human reproduction
a donor of gametes (who is not a partner of the mother) does not have any
standing to apply for access to any child subsequently born. A court may also be
unlikely to enforce an access agreement between a donor and mother in this
situation. |
- If a non-partner donor and parent have made an agreement for contact between
the donor and child, that agreement can be enforced in a Family Court as if it
is a parenting order, if the agreement has been made a consent order by the
Court.
- The Court will only enforce an order of this sort if to do so is in the best
interests and welfare of the child.
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