|
|
|
|
|
|
QUT Law & Justice Journal Vol 3 No 2 2003 |
|
ISSN 1445-6249 * Lawyer, Allens Arthur Robinson, Melbourne; PhD (Law) Candidate, Deakin University. This article was written independently of Allens Arthur Robinson, and the views expressed in this article do not necessarily reflect the views of Allens Arthur Robinson. ** Lecturer, School of Law, Deakin University. [1] J Campbell, 'Hatching, Unmatching and Parental Responsibility' (2002) 10 Australian Health Law Bulletin 101. [2] See Re Patrick (2002) 28 Fam LR 579. [3] Justice Guest's reasoning is explained below. [4] At the time of writing, the only significant academic discussion of Re Patrick is by F Kelly, 'Redefining Parenthood: Gay and Lesbian Families in the Family Court' (2002) 16 Australian Journal of Family Law 17 (accessed via Lexis). [5] See J Szego, 'Battle for Boy Ends in Double Tragedy', The Age (Melbourne), 3 August 2002, 1. [6] See Nulyarimma v Thompson (1999) 165 ALR 621; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. This is compared to the traditional 'incorporation' theory that rules of international law become automatically incorporated into domestic common law. It has been suggested that the 'incorporation' theory may still reflect the relationship between rules of customary international law and domestic law: See T Blackshield and G Williams, Australian Constitutional Law & Theory: Commentary & Materials (Federation Press, 3rd ed, 2002) 762-3. [7] Though it should be noted that in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, the Full Court of the Family Court said that, while it is clear that Part VII of the Family Law Act 1975 (Cth) adopts the terms and principles of the UN Convention of the Rights of the Child, the Convention had yet to be incorporated wholesale into domestic law, and is not specifically referred to in the Family Law Act 1975 (Cth). [8] (1997) 21 Fam LR 676. [9] See E Mills, Butterworths Tutorial Series: Family Law (Butterworths, 2001) 86. [10] See above n 1, 101-2. Campbell provides a good overview of the changes introduced to the Family Law Act in 1996, and discusses how the emphasis is now on parental responsibility rather than parental rights and the rights of the child rather than possession or ownership of children. [11] Section 60B states: (1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and (c) parents share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children. [12] Section 68F states: (1) Subject to subsection (3), in determining what is in the child's best interests, the court must consider the matters set out in subsection (2). (2) The court must consider:(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes; (b) the nature of the relationship of the child with each of the child's parents and with other persons; (c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or (ii) any other child, or other person, with whom he or she has been living;(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; (e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs; (f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant; (g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; (i) any family violence involving the child or a member of the child's family; (j) any family violence order that applies to the child or a member of the child's family; (k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (l) any other fact or circumstance that the court thinks is relevant. (3) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2). (4) In paragraph (2)(f): Aboriginal peoples means the peoples of the Aboriginal race of Australia. Torres Strait Islanders means the descendants of the indigenous inhabitants of the Torres Strait Islands. [13] (1998) 23 Fam LR 456. [14] Re Patrick (2002) 28 Fam LR 579. [15] Section 62F(2) of the Family Law Act provides: (2) The court may, at any stage of the proceedings, make an order directing the parties to the proceedings to attend a conference with a family and child counsellor or welfare officer:(a) to discuss the care, welfare and development of the child; and (b) if there are differences between the parties in relation to matters affecting the care, welfare and development of the child-to try to resolve those differences. [16] Re Patrick (2002) 28 Fam LR 579, 587. [17] Re Patrick (2002) 28 Fam LR 579, 589-590. [18] Ibid [40]. [19] See above n 4, [65]-[66]. [20] See Re B v J (1996) FLC 92-716, 83,620. [21] D Sandor, 'Children Born From Sperm Donation: Financial Support and other Responsibilities in the Context of Discrimination' (1997) 4 Australian Journal of Human Rights 175. [22] Section 65C of the Family Law Act provides: A parenting order in relation to a child may be applied for by:
[23] Re Patrick (2002) 28 Fam LR 579, 647 [24] B v J (1996) FLC 92-716, 83,621. [25] Re Patrick (2002) 28 Fam LR 579, 647. [26] Ibid. [27] Ibid. [28] Ibid 580. [29] Refer to part II above of this article. [30] Ibid. [31] Re Patrick (2002) 28 Fam LR 579, 648. [32] See also s 65C of the Family Law Act, in which a sperm donor father, as a person who is '... concerned with the care, welfare and development of the child', may apply for a parenting order. This is discussed by Guest J in Re Patrick (2002) 28 Fam LR 579, 647. [33] See Re Patrick (2002) 28 Fam LR 579, 648: '...consideration should be given to review the definition of 'parent' in s 60H of the Act to take into account that there are varying arrangements between donors and prospective mothers, and that donors such as the father in these proceedings may not only consider themselves a "parent", but may also be considered by the recipient of the genetic material to be a parent.' [34] See B v J (1996) FLC 92-716 where the Family Court of Australia held that a sperm donor father was not liable for child maintenance under the Child Support (Assessment) Act 1989 (Cth). [35] Kelly, above n 4, argues that other problems with amending s 60H to make the donor father a 'parent' include that it may result in the creation of a relationship between the donor and child that is not the reality of a child's life (see [51]), and would undermine the independence and boundaries of the 'homo-nuclear family unit' (see [66]). [36] See above n 4, [55]. [37] See the recent Scottish decision of In the Matter of Child A, decided in the Glasgow Sheriff's Court, in which s 11 is discussed in detail. This case is available on-line via the Scottish Law Courts website: <http://www.scotcourts.gov.uk/index1.asp> |
