Australian Family Law: Jurisdiction, Children's Best Interests Report

This report provides a comprehensive overview of Australian Family Law, tailored for social workers in Darwin. It begins with an introduction to the Family Law Act 1975, emphasizing the focus on children's rights and welfare. The report then delves into the jurisdiction of the Family Court, detailing its role in divorce, custody, and domestic violence cases, as well as the roles of other courts like the Australian Circuit Court and Local Courts. It explores the complexities of court jurisdiction, particularly regarding child protection and the 'one court principle.' The report also examines how the court considers and determines the best interests of children, outlining key factors such as parenting capability, consistency, the child's age, protection, and the impact of changes. Furthermore, the report discusses options available for separated parents to resolve parenting disputes, including mediation, and how the court handles the relocation of children, considering various factors to ensure the child's well-being. The report concludes with a summary of the key points and highlights the importance of the child's welfare in all legal proceedings.

Running head: RESEARCH PAPER 0
FAMILY LAW
SEPTEMBER 3, 2019
STUDENT DETAILS:

RESEARCH PAPER 1
Contents
Introduction.................................................................................................................................................2
Jurisdiction of court.....................................................................................................................................2
Consideration and determination of best interest of children.......................................................................5
Options available for separated parents to resolve parenting disputes.........................................................7
How court deals with relocation of children differently?.............................................................................9
Conclusion.................................................................................................................................................10
Bibliography..............................................................................................................................................11

RESEARCH PAPER 2
Introduction
While the parents of children under eighteen separate, in that case both have parental
responsibilities for the children, subject to the orders of court. These shared parental
responsibilities differ from same time. The parents also have certain obligations. It is their duty
to support their children monetarily. At the time of separating the parents, they turn to the family
law system (court, counsellor, and advocate) for sorting out the post separation arrangement. The
family law system may be as harder on the young people as this is upon parents. This concern
directs the Family Law Act 19751, and manages the international parent and children judicial
cases. This significant issue has the policy accountability for the post-separation service.
The Family Law Act 1975 puts focus on the children’s rights as well as the accountabilities,
which all the parents have to the children, instead of on parent’s rights. The Family Law Act
1975 is aimed to make sure that the child may enjoy the significant relation with all of the
parents, as well as are secured from harms2. The paper assesses how child protection as well as
federal family law systems operates, so that their intersection can be understood in better way by
the functioning in all systems. In the meeting of social workers conducted in Darwin, the court
jurisdiction, way of determination of best interest of children, and options available for separated
parents to resolve parenting disputes will be discussed and examined. This paper also discusses
how the court deals with children’s relocation in different way.
Jurisdiction of court
1 The Family Law Act 1975
2 Michelle Painter and Palaniappan Surya. Re: Kelvin-a turning point for gender dysphoria cases in Australia.
(Routledge, 2018)

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The family court is the court having limited jurisdiction. The family court hears the matters
related to the family law. For n instance, the family courts usually consider the matters related to
the divorce, custody of children, as well as the domestic violence. The family courts are
regulated by the local law as well as state law. Based on jurisdiction, the courts may be named
as domestic courts. Additionally, the family courts also regulate the ineffectiveness along with
guardianship trials in certain jurisdictions. Other jurisdictions leave the cases to the probate
courts. Mainly, the cases of family law, like application for divorce, made deal with by the
Australian Circuit Court or Australian family court or Federal. In addition, the Northern
Territory Local Courts have the limited jurisdiction. They can only hear matters of family law3.
Additionally, the local court may consider only certain matters of the family law. These are
discussed below-
The disputes related to family law property wherever the property’s value is not more than
20,000 $, except every person consents to local court considering a case wherever the properties
have the value more than 20,000 $
 Parenting case in which each party consents to local court practicing the jurisdiction of
family law4.
The section 69J of the Family Law Act renders all state-court along with territory court of
summary jurisdiction may practice the federal family law jurisdiction. The section 69N qualifies
it in that the court of summary jurisdiction may not hear defended proceeding in relation to the
orders of parenting, other than the children maintaining orders, without approval of each party.
In a case when approval not given, the court is grateful for transferring proceeding to Family
3
4 Jennifer Fraser and Stasa Helen. 2 Child rights in Australia (Springer, 2017)

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Court, Supreme Court (Northern Territory), the Family Court (WA), or Federal Magistrates
Court, as required by matter. If consent of all of parties is not obtained, then Local Court must
transfer matters to other Courts, like Australian Federal Circuit Court and Family Court of
Australia. In this situation, the local court may only pass temporary order pending a transfer5.
Additionally, when federal family court is not stimulated with responsibilities to examine child
maltreatment allegation, problems of family violence as well as children abuse can be related t to
the decisions regarding what is in best interest of children in decision of parenting. Normally, the
children protection organisations do not adhere the procedures unless they are suggested about
the family law proceeding along with judge the suspected matters related to children
mistreatment to be serious enough for warranting interference. In addition, as per the children
welfare law it is required that only one court should deal with these cases. In its 2009 advice,
Family Law Council also suggest referral of powers to Commonwealth Parliament for allowing
federal family court to have concurrent jurisdiction with a state court for dealing with cases
regarding the child involving the protection of children, family brutality, and child as well as the
parenting order6.
Moreover, in the view of Commission, the cases related to the children should be heard in one
court or as impeccably as judicial as well as support frameworks may get in the provided matter.
It was also results suggested by the Family Law Council in 2002 as the ‘one court principle’.
According to this, the territory court and state court is required to have the powers of board for
making the residence as well as contact order as per the Family Law Act in proceeding related to
children protection so that one court may handle substantive cases, and make sure best interest
5 Leslie Drozd, Saini Michael and Olesen Nancy, Parenting plan evaluations: Applied research for the family court.
(Oxford University Press, 2016)
6 Lisa Young, Anne Kenny Mary , and Monahan Geoff. Children and the Law in Australia. Lexis Nexis, 2016.

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of children along with welfare are stated. Preferably, one court is required to be liable to practice
the jurisdiction regarding the matters wherever the considerable and permanent shifts of parental
responsibilities for the children are raised at primary basis as the problem for resolution7. The
initial stage of engagement should aid resolution of related matters as far as possible, or help in
the even transition to other part of judicial services context more suited for getting these
outcomes. The children court’s power for making the contact orders in proceeding before them
seems to complement the concern along with protection jurisdiction. These powers are essential
if the government is to follow the ‘one court principle’ provided by the Family Law Council8.
Consideration and determination of best interest of children
The court gives the children custody related decisions in the best interest of the children
standards. It means that the judges would decide the custody arrangements that best suits
requirements of the children9. The court gives decision on the basis of the various factors. The
selection of the factors for the judge will differ on the basis state in where the matter is filed
since all state handle the children custody matters somewhat in different manner. Normally, the
judge would consider the following factors at the time of determination of the children’s best
interest-
1. Evidence of parenting capability: the court looks for the evidence that the parents
demanding custody is sincerely capable for meeting the physical requirements as well as
7 Simon Deakin and Markesinis Basil. Markesinis and Deakin's Tort law. (Oxford University Press, 2019).
8 Heinrich Moser. "Mediation in the family court of Western Australia." Brief 43.4 (2016): 20.
9 Claire Ferguson et al. "Allegations of child sexual abuse in parenting disputes: An examination of judicial
determinations in the Family Court of Australia." Journal of child custody 15.2 (2018): 93-11

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the emotional requirements. It will involve shelter, foodstuff, medical-care, along with
the education, loving care, and common parental direction10.
2. Consistency- Court normally prefers to keep the routine of child consistent. It involves
the living arrangements, as well as routine of school. The judge in family court prefer not
to disrupt the routine of children while possible.
3. Age of children- usually, the young children require hand on the care than older child.
The court also considers the bonding between parents and children while assessing the
children custody option, as well as taking decision what will be in a best interest of
children. Additionally, while the child is young, the judges regularly concede to the
parents who have been the primary caregiver in the life of children. There are certain
courts that will also consider desires of children, on the basis of age11.
4. Protection- The family court considers the protection factor on the priority basis. The
judge would willingly reject the custody in matters wherever they trust the protection of
children will be compromised.
5. Impacts of altering the current routine: While taking the changes into consideration,
the court also try to decide that how modifications will influence the children. In general
way, the judge tries for limiting the changes, which will have the adverse impacts.
Moreover, the parents may tell the judge that you have the best interest of children at heart by
stating that you have been properly included in their lives as well as have rendered focused along
the loving support12. The parents may tell this by stating that they have enrolled the children in
10 Anna Carline, Easteal Patricia, and Young Lisa. Domestic Violence, Property and Family Law in Australia.
(Routledge, 2018).
11 Methew Phillips. The children protection (Oxford University Press, 2018)
12 Ben White, "Estate contestation in Australia: An empirical study of a year of case law." UNSWLJ 38 (2015): 880.

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schools, are included in their education as well as nurture, have contributed in the extracurricular
activity, and have took parenting decision stating the best interest in developing the children. In
case wherever both parents are included, the judges can also consider whether the one parent is
more desiring to foster the affectionate relationship with another parent, so functioning to
recreate the faith with the ex may assist to state the intention13.
In addition, the Relocating can or cannot be in the best interest of children. For the instance, the
judge would normally reject the requests for moving if they believe the parent making the
requests is making try to reject or restrict the access of other parents. On the other hand, moving
can be in a best interest if the move permits the children for attending the best schools, renders
access to the children care or the supporting system, or will benefit the children in certain
different manner that may be state in courts. To conclude, remember that the courts are looking
at the children holistically. The judges do not only consider whether the people are fit parent. At
the time of determination of custody, the judges also aim to keep the factors of lives of children
constant when making sure that both parents have chance to be the active part of lives of
childreni.
Options available for separated parents to resolve parenting disputes
There are various options are available to the separated parents for resolving the parenting
disputes. The mediation is one of them. The mediation is the manner to resolve the dispute
between persons in conflicts, normally facilitated by the neutral people. The separated parents
are motivated to utilise the family mediation to help resolving the dispute about child, in place of
13 Molly Dragiewicz and Tyzack Jessica. Interview with the Right Honourable Diana Bryant, Chief Justice of the
Family Court of Australia. (Routledge, 2017)
i

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using the family law court. While the dispute may not be resolved by the mediation, the matter
can require going to the court for the judge for making decisions. The court process can be long,
demanding, as well as costly procedure. The objective of mediation is to avoiding the situations
reaching these points.
In addition, the family law system motivates the separated parents for coming to the personal
arrangement in supporting the children without referring the case into court. It may be done in
numerous manners like discussions between parents, utilizing the friends as well as families to
help, casual common mediation along with utilizing specific family mediation procedure
included in the the Family Law Act 1975 namely the Family Dispute Resolutions. Thus,
resolving the matters this manner is less formal than referring case into court. This should cost
less in time, emotions as well as money. Since both parties are involved in shaping a solution,
this increases the chance that the agreement would be the long lasting. In a case when there is the
history of family viciousness or children abuse, this cannot be proper for attending the family
dispute resolutions. One can ask the staff at family dispute resolution services in relation to the
option and the support service that is obtainable14.
Moreover, by the co-parenting partnership, the children are required to identify that they are
more significant in comparison of the conflicts, which finished the marriage, as well as know
that the love for them would prevail in spite of altering the conditions. The children whose
separated parents have the cooperative relation may feel secure. While confident of love of
parents, the kid adjusts more rapidly as well as easily to divorce, and new living conditions, and
have best self-worth. They can get benefit from the consistency. The co-parenting nurtures same
discipline, regulations as well as reward between families, so child knows what to suppose, and
14 Camille McDonald. Children, religion and family law: A glance into the eye of the storm. (Law Society of South
Australia, 2019)

RESEARCH PAPER 9
what is estimated of them. In this way, the children will be healthier mentally as well as
emotionally. The kids discovered to conflicts between the co-parents are more likely to have
problems like anxiety, ADHD as well as stress15.
How court deals with relocation of children differently?
The relocation disputes take place between parents regularly in the family court. Wherever both
parents have responsibility, this usually adopts that consent would be required while one takes
decision for relocating with the minor children. This is significant for noting that there are no
sections in the children’s Act, which makes deal particularly with relocation. This is the
unsuccessful authenticity of marital breakdowns that the previous spouse should go the separate
manners as well as reframe the live16. Characteristically, the relocation disputes would take place
while one parent, usually the parent of primary house as well as with whom the children
normally reside, takes decision to move other city. Every so often, the parent who is to be left
behind would reject to provide approval for relocation. The primary caregiver may go to the
High Court for the orders dispensing with consents of other parents. This should be noted that
this is not provided that the courts would repeatedly provide the consent. For the reason that the
Act does not set standards, the court is required to consider numerous aspects as well as case
laws before they may provide the order permitting relocation. Further, the court will only provide
permission as per the children’s best interest17. The significant factor that court would consider is
whether a decision by the parents for relocating is proper. The courts take the pragmatic
15 Sandra Berns. Women Going Backwards: Law and change in a family unfriendly society. (Routledge, 2018).
16 Andrew John. Family Law. (Springer, 2017)
17 The Children’s Act

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approaches for these matters, as well as even though the move can be disadvantageous to another
parent who will have less contacts with the children, lives should go on18.
Conclusion
As per the above analysis, it can be concluded that there can be adverse impacts of the separation
of parents on the children. The parents can opt various option with consideration of best interest
of children such co-parenting, medication and other. In the meeting of social worker, these
options will also be discussed. Unless the family has faced sever problem like as substance
abuse or domestic violence, the co-parenting having both parents can have active role in the daily
routine of children. This is the best manner for ensuring that all the requirements of children are
fulfilled as well as make able them for retaining the close relations with both parents. The
children will understand the problem in better way to solve. The children who consider the
parents continuing to do work jointly are more likely to know how to peacefully as well as
properly solve the issues themselves. In in addition they have the healthy examples for
following. In this way, with establishing cooperation with another parent, the children can
establish the patterns of life the kid may carry in upcoming period to form and keep strong
relations. It can say that the court should have to consider numerous case laws as well as facts
before providing the order to allow relocation.
18 Ian Buscombe, Medical Practice Valuations in Australia: A Commentary. (Cambridge University press, 2017).

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Bibliography
A. Articles/Journals/Books
Berns, S. Women Going Backwards: Law and change in a family unfriendly society.
(Routledge, 2018).
Buscombe, Ian. Medical Practice Valuations in Australia: A Commentary. (Cambridge
University press, 2017).
Carline, A, Patricia, A, and Lina, Y. Domestic Violence, Property and Family Law in
Australia. (Routledge, 2018).
Deakin, S. and Basil, M. Markesinis and Deakin's Tort law. (Oxford University Press,
2019).
Dragiewicz, M, and Jessica, T. Interview with the Right Honourable Diana Bryant, Chief
Justice of the Family Court of Australia. (Routledge, 2017)
Drozd, L, Michael, S, and Nancy, O, eds. Parenting plan evaluations: Applied research
for the family court. (Oxford University Press, 2016)
Ferguson, C, et al. "Allegations of child sexual abuse in parenting disputes: An
examination of judicial determinations in the Family Court of Australia." Journal of child
custody 15.2 (2018): 93-115.
Fraser, J, and Helen, S. 2 Child rights in Australia (Springer, 2017)
John, A. Family Law. (Springer, 2017)

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McDonald, C. Children, religion and family law: A glance into the eye of the storm. (Law
Society of South Australia, 2019)
Moser, H. "Mediation in the family court of Western Australia." Brief 43.4 (2016): 20.
Painter, M, and Surya, P. Re: Kelvin-a turning point for gender dysphoria cases in
Australia. (Routledge, 2018)
Phillips, M. The children protection (Oxford University Press, 2018)
White, B, et al. "Estate contestation in Australia: An empirical study of a year of case
law." UNSWLJ 38 (2015): 880.
Young, L, Mary AK, and Geo, M. Children and the Law in Australia. Lexis Nexis, 2016.
B. Legislations
The Children’s Act
The Family Law Act 1975