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 partners child

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

CHILDREN and de factos Amendments to the Status of Children Act 1996 granted lesbian couples the same parental rights of heterosexual couples. If one party gives birth to a baby due artificial conception procedures, both parties are considered the babys parents. Sperm donors are not recognised as fathers Where a sperm donor/surrogate has been used, there are only two ways that the intended parents can legally formalise their parental rights. These are by: o adopting the child - which can be a long and expensive process; or o obtaining parenting orders from the Family Court, which can make orders that a particular person is legally the parent of a child and therefore has parental responsibility for that child. Although the rights of lesbian parents are now protected by law, 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 childs biological mother. A birth certificate only records the names of a childs parents at the date of birth. It does not prove who has parental responsibility for the child on a long term basis. Parenting Orders by Consent will ensure both of you are legally recognised with equal parental responsibility for making long term decisions about the care, welfare and development of your child. A set of Consent Orders will also ensure you are both legally recognised by schools, treating practitioners, sporting clubs and other institutions as having rights in decision-making for your child. If you and your partner separate, and you cannot agree on parenting arrangements, 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. The Family Court determined, under the Family Law Act 1975 that the sperm donor is not considered the father in this situation. However the court granted him contact anyway, as court verdicts are made on a case by case basis.

Re Mark (2003) Through a surrogacy agreement in America, a homosexual couple had a baby. One of the parties to the relationship, Mr X, was also the biological parent of the child. They applied to the Family Court for recognition of parental rights. The couple were granted it based on best interest of the child, and were given a consent order under the Family Law Act 1975.

Family dispute resolution - negotiation, family dispute resolution, mediation, arbitration, collaborative law and child-inclusive processes. If there is a high level of emotional conflict or hostility, a power imbalance or domestic violence, some of these methods may be inappropriate. Family Relationship Centres - people can have three hours of free advice and assistance about their separation issues. You may be referred for reconciliation or separation counselling or for mediation. In most cases, 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. Often it is useful to reach a short-term or interim agreement on matters such as occupation of the home, where the children will live, how much time children will spend with the other parent and child support.

What are my responsibilities as a separated or divorced parent? Married or not, responsibility to ensure children receive adequate and proper parenting. All parents have the responsibility to promote the best interests of their children. Under the Family Law Act, parental responsibility for children does not end with separation or divorce, but continues until each child reaches at least the age of 18. Except when a child is at risk of abuse or neglect or it is contrary to a childs best interests, children have the right to live or spend time with both their parents and other people significant to their care, welfare and development, such as grandparents. Parents should try to agree about matters concerning their children. They share the responsibilities for making decisions about major long-term issues. When an agreement is reached it can be made legally binding by consent orders. Some parents choose to use parenting plans which are less formal. Court will make parenting orders on application if you cant reach an agreement. Now you may seek parenting or shared parenting orders, 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. The allocation of parental responsibility. Consultation between parties where there is shared parental responsibility. How to vary orders as the needs of the children or parents change.

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

How to change parenting arrangements

Once parenting orders are made, 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. Normally it is easier to change the provisions of a parenting plan. However, parenting plans do not have the same enforceability if they are breached. The Court often requires parents to meet with a family consultant to try to reach agreement on orders to be made. Court hearings in childrens matters are less adversarial than they previously were. Many cases are resolved once a family report is prepared by a family consultant or counsellor. Often the Court will appoint an independent childrens lawyer to represent the child. .

Apprehended Domestic Violence Orders

If violence, threats or verbal abuse occur in your relationship, it may be necessary to obtain an Apprehended Domestic Violence Order from a Local Court. In serious or urgent cases, a police officer may seek the order on your behalf. If you are afraid of your partner or a family member, tell your Solicitor who will advise you how to obtain an order to protect yourself and your family.

How will a solicitor help me?

Your solicitor can: Advise you of your legal rights. Advise you if you may be entitled to Legal Aid. Tell you which method of primary dispute resolution may be best for your case. Assist you to negotiate parenting orders or refer you to a counsellor or mediator. Check any agreement you make with your spouse on shared parental responsibility for children. If you must apply to the Court, 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. Interview your witnesses and prepare affidavits of their evidence. Present your case or engage a barrister to represent you in Court if it must go to a hearing. Help you to enforce or consider a variation of your parenting orders. Collaborative lawyers will help you to resolve all issues without going to Court.

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). The CRC was adopted in 1989 and ratified by Australia in December 1990. It makes the best interests of the child at least 'a primary consideration', and sometimes paramount, in actions and decisions concerning children. The principle of the best interests of the

child is one of the fundamental principles of the CRC underpinning the interpretation of all children's rights and freedoms. The CRC defines 'children' as everyone under 18 years. 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. A primary consideration - article 3.1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. In particular cases best interests may be the paramount consideration. Child protection and custody - article 9.1 States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, 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 - article 9.3 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, except if it is contrary to the child's best interests. Adoption - 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. Parental decision-making - article 18.1 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.

Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. Back to Top

Which actions are affected?

Article 3.1 applies widely to all actions concerning children. It is not confined to actions and decisions concerning the rights and freedoms set out in the CRC. An action 'concerns' children not only when it is directly about them, or in reference or relation to them, but also when it regards or touches them. Even if the child is not the object of the decision, the principle applies if the decision affects her or him. 'A broad reading of the provisions in Art. 3, one which gives to the word "concerning" a wide-ranging application, is more likely to achieve the objects of the convention', according to Mason CJ and Deane J in Ah Hin Teoh. The decision at issue in that case concerned a father's deportation. The High Court held the authorities ought to have taken into account the effects on the children of their father's deportation. Back to Top

Whose actions are covered?

Article 3.1 covers decision-making by all three arms of government: legislative, administrative and judicial. It also governs decisions by public social welfare institutions. Government decision-making relating to custody, residence, contact, care and protection must make children's best interests the paramount consideration. In other decisionmaking the best interests of the child, or of children generally, must be a primary consideration. Private social welfare organisations are also required to take the best interests of children into account (article 3.1). 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 18.1. Back to Top

What are the child's best interests?

The CRC does not explicitly define a child's best interests. The term is 'imprecise, but no more so than the "welfare of the child" and many other concepts with which the courts must grapple', said the High Court majority in Marion's Case. Even so, some points are very clear from the CRC. 1. In the case of actions and decisions affecting an individual child, it is the best interests of that individual child which must be taken into account. 2. It is in a child's best interests to enjoy the rights and freedoms set out in the CRC. For example, it is in children's best interests to develop respect for human rights

and for other cultures (article 29.1(b) and (c)). It is in a child's best interests to maintain contact with both parents in most circumstances (article 9.3). 3. It is in the best interests of Indigenous children to be raised in the Indigenous community (articles 5, 8.2 and 30). 4. 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). 5. Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1) but, if they fail to make the child's best interests a basic concern, the State may intervene to protect those interests (see article 9.1 for example). In Australia an example of a decision taken out of parents' hands altogether is whether to have a child with a disability sterilised. In Marion's Case the High Court stipulated that sterilisation is a 'step of last resort'. In the case of a young woman, 'regard will be had to the various measures now available for menstrual management and the prevention of pregnancy'. '[I]f authorisation is given, it will not be on account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities.' Back to Top

Are other considerations permitted?

Other considerations are clearly permitted by the general principle. Article 3.1 provides for a child's interests to be among the first considerations rather than requiring them to be the first considered or favoured. 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. By providing that the best interests of the child are 'a primary consideration' rather than theprimary or the paramount consideration, article 3.1 allows decision-makers to balance the best interests of the child against 'equally weighty' primary considerations of their own choosing, such as religious or economic considerations. But this discretion is restricted. 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, particularly those from vulnerable groups. As summarised by Mason CJ and Deane J in Ah Hin Teoh, '[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, asking whether the force of any other consideration outweighed it'. 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. Back to Top

Best interests in Australian law

The CRC establishes minimum standards. Where Australian domestic law sets a higher standard it must not be diluted (article 41). If, for example, the best interests of the child are the paramount consideration when the CRC only requires primary consideration, the higher standard must be retained. The CRC is not directly implemented in Australia; it is not part of Australian law. But the CRC is scheduled to the Human Rights and Equal Opportunity Commission Act 1986(Cth). 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. Where legislation requires the right of the child to be set aside, the Commission can only advise the Parliament that the legislation should be amended. Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament. The Commission has no authority over the courts. The High Court has imposed an obligation to consider human rights in cases of discretionary administrative decision-making. In Ah Hin Teoh the majority held that, although the CRC has not been implemented in Australian law, its ratification by Australia had given rise to a legitimate expectation that decision-makers would take its provisions into account. Where legislation permits a discretion, that discretion should be exercised in conformity with Australia's international treaty obligations. It is also now accepted 'that a statute is to be interpreted and applied, as far as its language permits, 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). Back to Top

Practitioner checklist
1. Concerning a child? Does the action or decision complained of affect a child or children (eg denial of Parenting Payment)? 2. Whose actions? a. If a child is affected, list the relevant actions and decisions and, for each, identify the decision-maker. b. Is the decision-maker covered by the CRC (eg Centrelink, police, education department, department of families, community services and indigenous affairs?) 3. Best interests considered? a. If the decision-maker is covered by the CRC, did it take the child's best interests into account?

b. 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. Were the child's best interests made a primary consideration or the paramount consideration as relevant? d. If you are unable to judge, consider how you might find out. 4. Challenging the decision a. Raise your concerns with the decision-maker or on review or appeal (eg at the Social Security Appeals Tribunal or in a bail application). b. If the decision breaches the child's rights, explore possible remedies. If the decision-maker is subject to the Commission's jurisdiction (discretionary decisions of federal agencies such as Centrelink or the department of families, community services and indigenous affairs), consider submitting a complaint (complaints infoline 1300 656 419). 5. Specialist advice For assistance, contact a specialist youth advocacy or legal centre or your local legal aid office. Back to Top

Select bibliography
P Alston & G Brennan (eds), The United Nations Children's Convention and Australia, 1991, HREOC/ANU/ACOSS P Alston, S Parker & J Seymour (eds), Children, Rights and the Law, 1992, Oxford Uni. Press A Asche, 'The Best Interests Principle in Article 3(1) of the UN Convention on the Rights of the Child' in 1994 Congress Papers, First World Congress on Family Law and Children's Rights, Sydney M Freeman, 'The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of the Children?, (1997) 11 International Journal of Law, Policy and the Family 360 J Harvey, U Dolgopol & S Castell-McGregor (eds), Implementing the United Nations Convention on the Rights of the Child in Australia, 1993, South Australian Children's Interest Bureau Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, 17th Report, 1998, Commonwealth of Australia S Parker, 'The Best Interests of the Child - Principles and Problems', (1994) 8 International Journal of Law, Policy and the Family 26 D Sandor, 'How High - How Far? The Best Interests Principle in Family Law', (1998) No 19Australian Children's Rights News

G van Bueren, The International Law on the Rights of the Child, 1995, 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, 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, it is not necessary for parties to have satisfied the abovementioned definition of a de facto relationship in order to apply for parenting orders. They will have standing before the court as mother or father. You can apply for Court orders stipulating the times and days on which you wish to see the children. Such orders can provide for contact on holidays and other important occasions. Since 2005 the Courts have been required to apply a presumption that it is in the best interests of the child for the childs parents to have equal shared parental responsibility for the child. If your role as a parent is being unreasonably diminished, you may have grounds for an application.

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. This achieves a result without court intervention (under s 90C and s 90UD)
Parental responsibility, s61B of the Family Law Act 1975 as all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.

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. a) abuse of that child; or b) family violence.

s71 and 72, Care Act, the Childrens Court can make care orders if its satisfied that on the balance of probabilities the Children require care/protection.

S35 Child support assessment act 1989 (cwlth) new child support formula, more time spent with child, less pay. Spend 65%, no pay.

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, 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

MEDIA
The facts on child protection in NSW - By Karen Michelmore (cross media reporter)

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