What are the voluntary reporting requirements relating to child abuse?

The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

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What are the technical requirements of parenting plans?

Section 63C(2) of the Family Law Act 1975 (Cth) (the Act) sets out the following technical requirements that must be met:

  • the plan must be in writing;
  • the plan must be signed by all parties;
  • the plan must be dated;
  • the plan must deal with one or more of the following: the person or persons with whom the child shall live with; the time the child is to spend with the other person or persons; the allocation of parental responsibility for the child; if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made when exercising the responsibility; the communication the child is to have with another person or other persons; maintenance of the child; the process used for resolving disputes about the terms or operation of the plan; the process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties of the plan; any aspect of the care, welfare, development of the child or any other aspect of parental responsibility; and
  • the plan must not be made under any threat, duress or coercion.

For parties who have separated, a formal parenting plan is not compulsory.

Are marriages involving a transgender person valid?

The question of the validity of a marriage involving a person who underwent a transition was considered by the Full Court of the Family Court in the matter of Re Kevin FLC 93-127.

The Full Court rejected the approach adopted in the English decision of Corbett v Corbett (orse. Ashley) in particular the notion that one of the purposes of marriage is that of procreation. The Full Court in Re Kevin stated (at 78,143):

[W]e reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside of marriage and many people who are married neither procreate, nor contemplate doing so.

Additionally, the Full Court also held the term man in the Act should be afforded its contemporary ordinary everyday meaning (at 78,139).

Ultimately, the Court upheld the validity of Kevin’s marriage and should be regarded as a man for the purposes of marriage as defined in the Act due to some of the following reasons (at 78,170):

  • Kevin had always perceived himself to be a male;
  • Kevin was perceived by those who knew him to have had male characteristics since he was a young child;
  • Kevin undertook sex reassignment surgery;
  • at the time of marriage, Kevin’s appearance, characteristics and behaviour was perceived as a man by his family, friends and fellow employees;
  • Kevin was accepted as a man for a number of social and legal purposes;
  • Kevin’s marriage as a man was accepted in full knowledge of his circumstances by his family, friends and work colleagues.

It should be highlighted, that the Full Court left open the question of whether a person who has yet to undertake a surgical procedure, should be regarded as a member of their psychological gender.

What proof is required to show that a marriage has come to an end?

The Family Law Act 1975 (Cth) fails to explicitly state what is necessary to establish separation. However, the union’s end will be demonstrated upon a change in the overall character of the relationship; this does not include examples of fighting or infidelity.

While there may be a general social presumption that a harmonious marriage revolves around a quiet coexistence founded upon monogamy, the law recognises the various forms that marriage may take. When determining the change in the overall character of the relationship, the courts will look into the full circumstances surrounding the breakdown of the relationship which may include the following lines of inquiry:

  • do the parties continue to cohabitate?
  • do the parties still engage in sexual relations?
  • do the parties present themselves in public as a couple?
  • do the parties care jointly for any children?
  • do the parties still support and protect one another?

It must be noted that there is no set formula to establish the end of a marriage; rather, the courts will look towards the natural indicators from before to after, the alleged separation in adducing evidence of the breakdown of a marriage.

What are some of the signs that demonstrate that a matrimonial relationship has come to an end?

There are no hard and fast rules as to what signs are determinative of a healthy marriage because each relationship is unique. However, there are a number of general signs that can be used to indicate a close matrimonial relationship, such as the living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship (per In the Marriage of Pavey (1976) 25 FLR 450 at 455).

However, the Full Court of the Family Court (the Court) In the Marriage of Pavey recognised that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before, and after. The Court In the Marriage of Spanos [1980] FLC 90-871 said (at 75,516): Marriage is made up of a number of variable components, the presence or absence of some or all of which and their degree and frequency of occurrence pointing the one way or the other in each individual case.

What are the effects of common law divorce?

Finkelstein J in James v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 493 (FCA) said (at 503 [41]):

According to the common law (which followed canon law) a marriage could be dissolved either by death or divorce. There were two kinds of divorce, one total and the other partial. A divorce a vinculo matrimonii was one which terminated the marriage relation. It was available in the case of incapacity such as would render the marriage contract void. The types of incapacity included: already being married; being under age; in the case of a minor; not having the consent of his or her parents or guardians; lack of mental capacity. A divorce a mensa et thoro was one which suspended the marriage relation and modified the duties and obligations between husband and wife. A divorce a mensa et thoro operated as a decree for the perpetual separation of the parties, affecting their personal rights and legal capacities in the same way as a decree of divorce a vinculo matrimonii, except that neither party could marry during the life of the other.

What are the acceptable grounds for divorce in Australia?

Irretrievable breakdown of marriage is the only grounds for divorce in Australia. In order to prove this is the case, the parties must have lived separately from each other for at least 12 months. This period begins on the day after one (or both) of the parties intends to end the marriage, and communicates it to the other.

There must also be no reasonable likelihood of the parties reconciling. After the 12 month period has passed, and the parties are not reasonably likely to reconcile, one or both may apply for divorce.

Do I have to pay child support if the child is not mine?

As a rule, child support is only payable by the parent of the child. Accordingly, the Department of Human Services (the Department) is unable to accept an application for a child support assessment unless the person listed in the application is the legal parent of the child in question: if the child in question isn’t yours, you needn’t pay child support. Note that the law considers biological children, adopted children and children as defined under the Family Law Act 1975 (Cth) to be eligible for child support.

Under s 107(1) of the Child Support (Assessment) Act 1989 (Cth), if the Department accepts an application for child support from you, you can apply to the court for a declaration that they should not be assessed because you are not the parent of the child. If the court makes that declaration, s 107(5) holds that the Department is presumed to never have accepted the application your child support, and your obligations for this will end that day.

How are financial and property issues resolved in relation to de facto relationships?

De facto couples who have shared a genuine domestic relationship of trust and intimacy for at least two years or more, are able to apply for division of property settlement orders. However, it should be highlighted that there are a number of complex issues that need to be navigating in relation to resolving financial and property issues between de facto couples.

Firstly, there is no requirement that parties must have children in order to demonstrate trust and intimacy, however on the other hand, having a child is not always sufficient in demonstrating the existence of a legal de facto relationship. However with that being said, it may be advantageous for parties in de facto relationship who have been involved with one another previously to register their relationship in a state or Territory – irrespective if the relationship was same sex or not.

Under the Family Law Act 1975 (Cth)(the FLA), applications for property division in relation to de facto couples must be made within two years of the conclusion of the relationship, however, limitations may still exist in regards to the ability of the parties to utilise the provisions of the FLA when dealing with property matters. For example, in certain jurisdictions, the legislative instruments may mean that the Commonwealth provisions may not be applicable for such matters.

What are the eligibility requirements for unpaid maternity or paternity leave under the provisions of the Fair Work Act?

In order for casual employees to be eligible for unpaid parental leave, they must satisfy the following criteria under s 67 of the FWA:

  • the employee is, or will be, a long term casual employee of the employer immediately before the date, or expected date, of birth or placement of the child, or the date on which the employee’s leave is to start; or
  • but for the birth or placement of the child, or the taking of the leave, the employee would have had a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

As many readers may have noted, unpaid maternity or paternity leave is only available to long term casual employees, which means that the employee must have been employed on a regular and systematic basis during a period of at least 12 months, as outlined under s 12 of the FWA.

Similar to the definition of casual employee, there is no formulaic approach to employment on a regular and systematic basis. However, case law regarding the matter has stated that the work must be regular and systematic, rather than specifically looking to the hours and the days of work. Therefore, a defined pattern of rostered hours may be a strong indicator of regular and systematic employment, along with the offer to the employee to undertake work and regular acceptance of available work by the employee, may also be considered as evidence of regular and systematic employment, as was noted in Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078.

What are the circumstances which require mandatory notification to child welfare authorities?

A number of professions under State and Territory law require that if a person on reasonable grounds holds concerns that a child may be suffering abuse, they must report their concerns to the relevant welfare authority irrespective of any other law that may require confidentiality. Some of the professions that are affected by the requirement includes teachers, doctors and other medical or mental health professionals, along with community service workers, just to name a few.

In the legal realm, the Family LawAct 1975 also compels any court staff members, family and child counsellors and dispute resolution practitioners to report any information or suspicions of child abuse to the relevant child welfare authority. Therefore, a person in the course of performing their duties, functions or exercising of their powers under s 67ZA(3), that if the person has reasonable grounds for suspecting that a child:

  • has been ill treated, or is at risk of being ill treated; or
  • has been exposed or subjected, or is at risk of being exposed or subjected to behaviour which psychologically harms the child, must notify the prescribed child welfare authority of their suspicion.

Notification of child abuse can be done to any court that exercises a family law jurisdiction by filing a Notice of Child Abuse or Family Violence – Form 4 with an affidavit that sets out the evidence in which the allegations are based. The court must then consider if an order should be made in regards to the allegations.

How is `equal time defined in the Family Law Act?

If the courts make an order for the child to spend equal time with both parents, it must be reasonably practical to do so, whilst still taking into account the best interests of the child.

Section 65DAA of the Family Law Act sets out what is considered as reasonable and practicable, and the courts may consider:

  • how far apart the parents live from each other
  • the capacity of the parents to implement the arrangements being considered
  • the capacity of the parents to communicate with each other and resolve any difficulties
  • the effects of the proposed arrangements on the child.

In circumstances where one parent wishes to argue against the equal time arrangements, it must be up the complainant to demonstrate that the equal time edict is not in the best interests of the child.

What are the basic requirements of a parenting plan?

The courts and the Family Law Act 1975 (Cth) (the Act) encourages parents to reach agreements without legal intervention. Under the provisions of s 63B of the Act, parents are encouraged to:

  • agree to matters concerning the child;
  • take responsibility for parenting arrangements and to resolve any conflicts;
  • use the legal system as a last resort;
  • minimise any present and future conflict by using, or reaching an agreement;
  • reach an agreement where the best interests of the child is the paramount consideration.

When parents agree to a parenting plan, for it to be valid, the plan must conform to the requirements set out in s 63C(1), which are:

  • the plan is in writing;
  • the plan is signed and dated by the parties;
  • the plan is to deal with matters such as who the child is to live with, spends time with, communicates with, along with maintenance and other issues (s 63C(2)).

It should be noted that a parenting plan will only be valid if it was made free from threat, duress, or coercion (s 631A).

How is separation defined?

Section 49 of the Family Law Act 1975 sets out the meaning of separation, which is defined as follows:

(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

As noted in s 49(1), separation can be instigated by one party, and a marriage can be shown to have come to an end if the usual factors which signify a loving marriage, such as: financial interdependence; sexual relations between the parties; and a recognition that there exists a relationship both in private and in public, are no longer features of the relationship – then it can be shown that a marriage has broken down.

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