Monthly Archives: November 2013

Child Abducted from the United States Found Safe in Australia

on by

Savanna-Catherine-Todd-abducted-as-a-child

For the past six years, an unassuming home in a quiet pocket of Sunshine Coast suburbia has housed the answer to a two-decade mystery.

Savanna Catherine Todd was 10 months old and the centre of a bitter custody battle when she disappeared from the US with her mother Dorothy Lee Barnett in 1994.

Her millionaire father, South Carolina stockbroker Benjamin Harris Todd III, never gave up hope his daughter would be found.

This month his hopes were realised. Acting on a tip-off, Australian and US police swooped on an unassuming corner home at Mountain Creek, a suburb bordering Mooloolaba on Queensland’s Sunshine Coast, and arrested a woman who went by the name of Alexandra Geldenhuys.

Her daughter, Samantha Geldenhuys, was identified as long-lost Savanna, now 20 and a nursing student.

Mr Todd and Ms Barnett, a flight attendant, married in 1991, but the marriage crumbled. Ms Barnett filed for divorce before Savanna was born in May 1993.

A bitter divorce and custody court battle followed.

Mr Todd’s long-time lawyer Graham Sturgis said Ms Barnett, who had been diagnosed with ”a variant of bipolar disorder”, increasingly became agitated during the two-

week hearing and a court deputy stood directly behind her seat. ”She was having a hard time remaining in her seat,” Mr Sturgis said.

The judge awarded Mr Todd full custody of Savanna and Ms Barnett was allowed to visit her daughter every second weekend, but after her first visit she refused to return her daughter.

Contempt of court proceedings took place, but Ms Barnett was not stripped of visitation rights and just weeks later, in April 1994, she

and Savanna disappeared during a supervised visit.

Mr Sturgis recalls accompanying Mr Todd to Ms Barnett’s home in an attempt to find his daughter.

”The scariest part was going in the house because I didn’t know what we would find,” Mr Sturgis said. ”Did Lee do something to herself and the child? Had they left?”

The house was a mess inside. Food was left on the bench top and a map of Central America, a favourite destination for Ms Barnett, was found. Mr Todd did all he could to find his daughter.

He was highly visible in the US media, appearing on popular television talk shows, including Montel Williams and Sally Jessy Raphael, agreeing to tell his story in newspapers and magazines in the hope of finding a clue to Savanna’s whereabouts.

Mr Todd also launched a civil court case in South Carolina against his ex-wife. The judge was so taken with the suffering the father had endured he awarded him $US50 million in damages.

The money was not the goal.

What Mr Todd and Mr Sturgis wanted was to subpoena and take depositions from people they believed knew where Savanna was, or had helped Ms Barnett to flee.

Mr Sturgis described the $US50 million as ”totally uncollectable” and the ”bits and pieces” of information they collected during the court proceedings ”all pointed in different directions”.

Ms Barnett, 53, is accused of fleeing with Savanna to Europe, eventually marrying in South Africa, then moving to New Zealand, before settling in Australia in 2007.

She is in custody in Queensland and has been indicted in the US on parental kidnapping and making a false statement on passport application charges.

The US plans to extradite her. If convicted she faces more than 20 years’ jail. Savanna, 20, who attends James Cook University, is standing by her mother.

Tasmanian Abortion rules are fiction: lawyers

on by

foetusDOCTORS can ignore restrictions on late-term abortions in Tasmania without fear of prosecution and potentially without any professional sanction, according to senior legal figures.

The Reproductive Health (Access to Terminations) Act, passed by state parliament on Thursday, decriminalises abortion, but in a bid to win broader public and parliamentary support, it imposes conditions on terminations after 16 weeks pregnancy.

After 16 weeks, two doctors must agree the termination would lessen the risk of physical or mental injury to the woman.

However, a later section of the act amends the state’s criminal code so that no doctor can be prosecuted for any abortion as long as it is performed “in good faith and with reasonable care and skill”, “for the woman’s benefit” and is “reasonable having regard to all the circumstances”.

The state’s Law Society, backed by a barrister’s legal advice and an administrative law expert, believes the criminal code change decriminalises all abortions that meet the good faith, care and benefit test.

In written advice, the society advised the state’s upper house that this rendered the 16-week safeguards “wholly inoperative” and allows for lawful “termination at any time prior to birth”.

The society would not comment on the issue yesterday but a number of senior lawyers are concerned the claim that the act imposes restraints on abortions beyond 16 weeks is a “legal fiction”.

Supporters of the legislation argue that doctors flouting the post-16 week safeguards would face professional misconduct proceedings. However, some senior legal figures say this is unclear and far from guaranteed.

University of Tasmania administrative law expert Michael Stokes told The Weekend Australian there was no criminal sanction for a doctor ignoring the post-16-week safeguards in section 5 of the act.

“The act decriminalises abortions at any period of pregnancy as long as performed by a medical practitioner with good faith, reasonable care and the woman’s consent,” Mr Stokes said.

“The question of professional discipline is more difficult. But . . . there is strong argument that a doctor who ignored section 5 could not be subject to any professional discipline.”

Tasmanian Health Minister Michelle O’Byrne, who sponsored the legislation as a private member’s bill, conceded the lack of criminal sanctions, but insisted doctors flouting safeguards faced professional sanction.

However, Mr Stokes said a doctor ignoring the requirements could argue they had no case to answer if they were in compliance with the new tests of good faith, reasonable care and benefit.

The Australian Medical Association said it believed any breach of the post-16-week safeguards would, if a complaint were made, be considered by the state’s Health Complaints Commission.

Domestic violence cases soar in Western Australia

on by

Silent Domestic Violence Memorial MarchThe number of domestic violence incidents in WA has risen almost 60 per cent over the past four years, with police attending more than 44,000 calls for help in the past year.

Police figures released to The West Australian show in the 2009-10 financial year police recorded 8290 domestic violence incidents.

The figure soared to 13,183 incidents last year, with 16,868 offences recorded and 5385 people arrested or summonsed.

Offences included assault, sexual assault and manslaughter but excluded non-physical violence including verbal abuse or breaches of violence restraining orders.

The Women’s Council for Domestic and Family Violence Services WA said police responded to more than 44,000 call-outs to domestic and family violence incidents in the past year.

Family and Domestic Violence Response Teams were set up this year in a bid to offer immediate help to victims.

Each morning teams consisting of police, Department for Child Protection and Family Support workers and a nominated non-government support agency meet to discuss domestic violence incidents from overnight.

Police say it is a co-ordinated response focusing on early intervention.

DCPFS director-general Terry Murphy said offers of help were accepted by 42 per cent of adult victims after the incident was reported to the teams.

“Whilst some victims are often overwhelmed by their current circumstances, and do not take up the initial offer of support … (the teams) are able to provide a pro-active follow-up within days of the initial report, allowing victims time to consider what support or assistance best meets their needs,” Mr Murphy said.

Today, 500 people are expected to remember those who lost their lives to domestic homicide.

The 23rd Silent Domestic Violence Memorial March will be held at Stirling Gardens in the city.

Women’s Council chief executive Angela Hartwig said another 21 women, men and children had died since last year’s march.

She said police figures backed the council’s plea for extra support. “We can’t confidently say that all victims can get the help they need when they need a service,” Ms Hartwig said.

Child Protection and Family Support Minister Helen Morton said any increase in domestic violence was of concern and the Government was strengthening its response to the complex issue.

A new 24/7 co-ordinated emergency response in the metropolitan area will be introduced after a review into WA’s family and domestic violence services.

Is a self represented litigant entitled to recover costs?

on by

self-represented-litigantIf you successfully represent yourself, the costs you can recover from the other party are strictly limited. The appellant in this case successfully represented herself. At the conclusion of the proceedings, she sought compensation for her time spent conducting the case on her own behalf.

The Full Court of the Federal Court of Australia held that, as a self represented litigant, the appellant was not entitled to an order for costs on the basis of her time spent or earnings lost in the preparation or presentation of her case. Although the appellant was a qualified paralegal, the Court found it of no relevance that she conducted the clerical and paralegal work related to her case through her registered business “Litigation Services”.

A self represented litigant is normally entitled to out-of-pocket expenses actually, necessarily and reasonably incurred. An order was made in this case allowing the appellant to be compensated for any of these costs which she could establish she had incurred.

In summary, for self-represented litigants, any costs incurred in the course of litigation (other than reasonable and necessary out-of-pocket expenses) cannot be recovered.

This consideration should be at the forefront of any potential litigant’s mind when considering whether or not to seek the advice, assistance and representation of a legal practitioner.

Family Court stalwart who was dedicated to children’s welfare

on by
Justice John Fogarty

Justice John Fogarty. Photo: Mark Wilson

John Francis Fogarty, who was an outstanding Family Court judge and a significant figure in child protection, has died aged 80. His compassion and humanity shone through all aspects of his life. He did not avoid the difficult issues in society and his life, thus making his contribution so noteworthy.

John Fogarty was born in Benalla, third son of Patrick and Nellie Fogarty, both originally from Koroit, but grew up in East St Kilda. He attended Christian Brothers’ College St Kilda but matriculated at St Kevin’s College because CBC St Kilda did not accommodate year 12 at the time. He was a good but not exceptional student, winning a Commonwealth Scholarship.

John’s father was a railway signalman and expected his son to take a secure job in a bank or the public service. Instead, John was determined to study law, despite family finances precluding full-time study. He enrolled at Melbourne University and undertook the articled clerks’ course, working full-time.

John Fogarty, AM
Judge, children’s rights advocate
9-6-1933 — 3-10-2013

John excelled in those studies, winning the Supreme Court prize for articled clerks in 1954. Rather prophetically, the next year, while still an articled clerk, he contributed the major case note in Res Judicatae (the journal of the Law Students’ Society) with august contributors such as Zelman Cowen and David Derham. The title of the article was ”Divorce – Constructive Desertion”.

He signed the bar roll in March 1956 and quickly developed a wide general practice with an emphasis on civil jury work, testator’s family maintenance and family law. Very much at home in the criminal jurisdiction, he defended the late detective sergeant ”Bluey” Adam, the only accused acquitted in the trials arising out of the Beach royal commission into police corruption.

More significantly, Fogarty was junior counsel to Edward Woodward, QC, in the first Aboriginal land rights case in Milirrpum v Nabalco Pty Ltd. This involved many trips to central and northern Australia and left a lasting impression on him. They did not win the day, but principles were established that led to the later High Court decision in the Mabo case.

In addition to his busy practice, John was editor of the Victorian Law Reports from 1969-1976, consulting editor of the Australian Argus Law Reports, author of Bourke & Fogarty’s Maintenance Custody and Adoption Law, and co-author of Bourke’s Police and Summary Offences.

There were many tragedies and hardships in these years. His eldest brother, Kevin, died in 1965 aged 40. John’s first wife, Noel, whom he had married in 1956, died in 1968 from encephalitis, leaving their three sons all aged under 10 years. He was assisted in the care of the children by Noel’s mother. His second marriage to Judy Henry in 1973 ended in 1980.

On February 2, 1976, Harry Emery and John Fogarty were the second and third appointees to the Family Court in Melbourne. John had been very active with Austin Asche, the first judge appointed in Victoria to educate the legal profession before the commencement of the Family Law Act. He sat from early days as an appeal judge in the full court and later as chief judge in appeals.

John Fogarty is generally regarded as the foremost jurist to sit in the Family Court. It was claimed at his farewell sittings that the Family Law Reports contain 280 of his judgments. He was involved in many major judgments in the early 1990s, particularly with the then chief justice, Alastair Nicholson, which defined major aspects of family law.

In 1983, John married Alicia Noonan and the next 30 years were likely his most contented. They established a superb garden at their home in Hampton. Alicia has been a wonderful hostess and Melbourne Cup day at the Fogartys was legendary.

As well as his duties as Family Court judge, John was chairman of the Family Law Council from 1983-86, and chairman of the Institute of Family Studies from 1986-90. As chairman of the Child Support Consultative Group from 1988-89 and chairman of the Child Support Evaluation Advisory Group in 1991, he was instrumental in the creation, establishment and implementation of child support in Australia.

John Fogarty’s interest in child welfare became a dominant theme in his life. He was chairman of the Victorian Family and Children’s Service Council from 1988-91. Due to his experience in the Family Court, he was acutely aware that children in vulnerable situations needed better protection.

In 1989 and 1993, he produced significant reports on child protective services in Victoria. The report on the notorious Daniel Valerio death led ultimately to mandatory reporting of child abuse in Victoria.

John’s interests were many. It is likely that his remarkable intellectual curiosity led him into the uncharted fields of family law and child protection. His love of literature and history, particularly Australian, was evident in his extensive private library.

He enjoyed sport. John’s first serious heart trouble occurred immediately after the siren when Melbourne stormed home to defeat Carlton in the 2000 preliminary final. He was in Epworth Hospital when Essendon thrashed the Demons in the grand final. In later years, John wryly remarked that the only illness likely to be induced by following Melbourne was depression.

He was a member of the Melbourne Racing Club and enjoyed a day at the races, particularly during the Caulfield carnival. He also followed cricket and tennis.

Recognition of the significant contribution made by John Fogarty to Australian society came in January 1992 when he was made a member of the Order of Australia. Other awards were the White Flame Award (Save the Children Fund) and the Community Services Appreciation Award. He was patron of the Centre for Excellence in Child Welfare, the Mirabel Foundation and Family Life, and director of the Trust for Young Australians and the Child Protection Society.

Despite his busy life, John found time for his friends. He enjoyed a weekly lunch when discussion rarely related to work but rather an analysis of the week’s footy, racing or cricket, plus a dose of current politics.

John is survived by his wife, Alicia, sons Peter, Mark and Matthew, and grandsons Balin and David.

Maurie Harold was a senior registrar of the Family Court in Melbourne and knew John Fogarty for 70 years.

Pregnancies earn woman better deal in defacto family law split

on by

TWO short pregnancies were among the reasons a woman should get a larger property settlement from her millionaire former property settlement, a judge has found.

The first pregnancy ended in a heartbreaking miscarriage and the second was terminated on the insistence of her defacto partner, the Family Court heard.

The court found that the woman had made substantial contributions to the welfare of the family by virtue of the pregnancies.

In a recently published judgment, Justice Garry Watts said the woman had made contributions in the role of homemaker and loving partner during the relationship of almost two years, including by doing the dishes, cleaning and cooking, and walking the dog.

But her contributions extended to her participating in trying to enlarge their family by “committing to carry a child to term on two occasions; being involved in medical consultations; her physical discomfort during the two pregnancies; and the physical effects and emotional and psychological pain arising from the foetal demise and from the termination of the second pregnancy”.

The Family Court heard the man had a net wealth of up to $5 million.

Justice Watts said his declaration that the woman had made a substantial contribution meant “the result she will get in this court is significantly better”.

The man had argued that after the miscarriage he did not want to try for another child, but his partner had forced him to have sex with her.

But Justice Watts rejected the claim.

The woman gave evidence that one doctor refused to terminate the pregnancy after she confessed she was being forced to do so by her partner.

The man then took her to a second clinic, telling her not to “mess it up”, the court heard.

Justice Watts said the termination had been traumatic for the woman: “She cried for hours every night for many months following the termination.”

The woman is seeking $200,000.

The matter has been adjourned for further hearing.

Chinese Official Shamed Over Adulterous Love-Affair Contract

on by

affair-contract-in-chineseA Chinese official has become an online laughing stock after the publication of a bizarre “love-affair contract” which he had obliged his mistress to sign.

The six-clause code of conduct, which was published by the Beijing News, set out the ground rules for a secretive affair between Tao Yi, a senior tax officer from Guangxi province, and a married woman who was named only as “Ms Fan”.

The six clauses – drawn up on a lined piece of A4 paper and dated March 2013 – stipulated:

1 No sex with third parties while the two sides are still in a relationship.

2 Meet at least once a week.

3 If the two come into conflict any break-up must be announced in written form.

“Surely, the official is aware that this love-affair contract is not protected by law,” wrote one.

4 If one party violates clause one, there will be a one-off compensation payment of 10,000 yuan [$1700] for mental damages to the other party.

5 The woman shall not interfere with the man’s work or family, or she will be punished accordingly.

6 The man shall take care of the woman’s living costs as per their agreement.

The contract was ridiculed by users of the Chinese microblogging site Weibo.

“Surely, the official is aware that this love-affair contract is not protected by law,” wrote one.

“With President Xi Jinping currently waging a high-profile war on corruption and debauchery, the leaked agreement represents a flagrant breach of Mr Tao’s contract with his Communist Party employers in the city of Guigang.”

A government spokesman told the Beijing News that Mr Tao had been relieved of his duties. The tax bureau and officials from the city’s disciplinary committee were investigating.

Mr Tao is the latest in a string of Communist Party officials to find his name caught up in a career-extinguishing sex scandal.

In August, state media called for officials to be banned from nightclubs after a group of Shanghai judges were caught cavorting with sex workers.

Earlier this month, officials in central China were accused of operating clandestine, whisky-fuelled karaoke sessions inside their local Party School, where Communist officials are supposed to learn about Mao Tse-tung.

Free family law advice available for Hervey Bay sittings

on by

A FREE family law legal advice service is available for people who are scheduled to appear at the visiting Federal Circuit Court in Hervey Bay next week.

Run by Legal Aid Queensland, the Family Law Duty Lawyer Service will be available from 9am at the Hervey Bay Courthouse on the corner of Queens Rd and Freshwater St at Scarness.

Legal Aid Queensland Family Law principal lawyer Suellan Walker-Munro said the duty lawyer service provided a legal lifeline to people representing themselves in family law matters.

“Our duty lawyers provide free legal information and advice, help fill out some forms and documents needed for that day in court and will also talk about eligibility for ongoing support from Legal Aid,” she said.

“The service is aimed at people who turn up for court for a session that day without having received any information or advice from a lawyer.

“Our duty lawyers will try to help these people get through their day in court and give them the information they need to better prepare for later court dates.

“Duty lawyers can only provide a basic service to help people through that day in court.

“The duty lawyers are not going to be able take on case work or represent people in family law trials.

“Our duty lawyer service will go some of the way to helping people get through that first day before the court, but cannot replace the very important assistance a lawyer can provide in the days and weeks leading up to a court date.”

To access free legal information and advice from Legal Aid Queensland, phone 1300 651 188.

Too much medicine wasted on the dying, end-of-life care report says

on by

advanced care directivesA QUARTER of the nation’s health budget is devoted to futile end-of-life care that strips patients of a dignified death and means healthier people have their surgery delayed.

In two major studies doctors are pleading for more people to sign advanced care directives that tell medicos not to revive them and not to provide care in certain circumstances.

A white paper on End of Life Care, the result of a collaboration of the Australian Centre for Health Research, Monash and Melbourne Universities, says junior doctors are often left in charge of end-of-life care.

The paper, to be released on November 21, said they don’t have the authority or confidence to make the tough decisions and instead very frail and elderly people are subjected to “conveyor belt” emergency care that “is reactive, unwanted and unnecessary”.

And a Medical Journal of Australia paper released today says Australians with advanced disease will average eight hospital admissions in their last year of life – and face a 60-70 per cent chance of dying in a ward.

This is even though 90 per cent say they would like to die at home.

Allison Sheather, 48, is dying of breast cancer and wants to spend as much time as possible at home with her two children as she nears the end of her battle.

With the help of her doctor Professor Richard Chye and nurses from the Sacred Heart palliative care service she is able to remain at home with her children, with brief visits to the hospital as her health deteriorates.

‘For me personally there is no going back,” she says.

“I’m only 48 and it’s a big decision. I’ve spoken to my doctors and my family and that’s how it’s come about listening to them. It’s hard as you can imagine,” she says.

“I think it is worth being able to make these choices,” she says.

“I want my family around me and today I’ve been out doing the groceries,” she says.

Allison says it is vital more people in her situation get the chance to consider their options and make choices about their care.

Melbourne anaesthetist Professor Paul Myles gave the example of a man in his 70s who was rushed to hospital for open heart surgery, even though his kidneys had stopped working, was in respiratory distress, had poor mobility and memory and required full time care.

The surgery took nine hours, 20 units of blood and caused three other heart surgeries to be cancelled.

The patient died in ICU 13 days later.

“I could not see how he would ever have an acceptable quality of life,” Professor Myles said.

Brisbane’s Princess Alexandra Hospital Professor Ian Scott wrote in the Medical Journal of Australia that 50 per cent of all deaths in Australia are clinically expected because of advanced disease.

“Almost a quarter of intensive care beds are occupied by patients receiving potentially inappropriate care,” he says.

“Regrettably considerable suffering as well as dissatisfaction with and overuse of health care result,” he says.

The white paper on End of Life Care found aged care homes often performed unnecessary, unwanted and unsuccessful resuscitation attempts with poor survival rates.

The report blames a medical culture that sees stopping treatment as a “failure” for the problem.

And it says too often even when patients have signed and advanced care directive refusing care it is ignored or not made available to hospital staff.

Doctors, nurses, specialists and other health system workers should offer all patients, not just those with a chronic illness patients, the chance to sign advanced care directives while they are healthy, the report says.

And it says there needs to be a better system for storing these living wills.

As the population ages more than 250,000 patients a year are expected to die from chronic disease in 2036.

Family law fact sheet – parenting orders and shared parental responsibility

on by

parenting-orderA Parenting Order specifies where a child is to live, the time they are to spend with each parent and how they can communicate with their parents.

The Family Law Act 1975 (Cth) states that when making a Parenting Order, the Court must presume that it is in a child’s best interests for separated parents to have equal shared parental responsibility.

This means that parents must consult with each other and share responsibility for decisions about major long term issues in regard to the children.

Major Long Term Issues

Major long term issues are issues about the care, welfare and development of a child of a long-term nature such as:

  • The child’s education (both current and future);
  • The child’s religious and cultural upbringing;
  • The child’s health;
  • The child’s name;  and
  • Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

The best interests of the child remain the paramount consideration, however, and the presumption of equal shared parental responsibility will not apply in situations of family violence or child abuse.

Where the presumption does apply, the Court must consider the appropriateness of the child spending equal time with both parents.  If equal time is not appropriate, the Court must consider whether it is in the best interests of the child to spend substantial and significant time with each parent.

Substantial and significant time requires some time on weekends, holidays and on other days.  It must include time in the child’s daily routine and allow the participation at events that are significant to the child and significant to the parent.

Substantial and Significant Time

In considering whether it is reasonably practicable for a child to spend equal time or substantial and significant time with a parent, the Court will have regard to:

  • How far apart the parents live from each other;
  • The parent’s current and future capacity to implement an arrangement for the child to spend equal time, or substantial and significant time, with each of the parents;
  • The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
  • The impact and arrangement of that kind that might have an impact on the child; and
  • Such other matters as the Court considers relevant.

The Child’s Best Interests

The primary considerations in determining what is in the child’s best interests are:

  • The benefit to the child of having a meaningful relationship with the parents;  and
  • The need to protect the child from psychological or physical harm from being subjected to, or exposed to, abuse, neglect or family violence.

In applying these two (2) primary considerations, the Court is to give greater weight to the need to protect the child from harm and from being subjected or exposed to abuse, neglect or family violence.

Additional Considerations

Additional considerations are as follows:

  1. Any views 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 views;
  2. The nature of the relationship of the child with:
  • Each of the child’s parents;  and
  • Other persons (including any grandparent or other relative of the child);
  1. The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
  • To participate in making decisions about major long-term issues in relation to the child;
  • To spend time with the child; and
  • To communicate with the child;
  1. The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
  2. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
  •  Either of his or her parents;  or
  • Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
  1. The practical difficulty and expense of a child spending time with and communicating 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;
  2. The capacity of:
  • Each of the child’s parents;  and
  • Any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

  1. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
  2. If the child is an Aboriginal child or a Torres Strait Islander child:
  • The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and
  • The likely impact any proposed parenting order under this Part will have on that right;
  1. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  2. If a family violence order applies, or has applied, to the child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the following:
  • The nature of the Order;
  • The circumstances in which the Order was made;
  • Any evidence admitted in proceedings for the Order;
  • Any findings made by the Court in, or in proceedings for, the Order; and
  • Any other relevant matter.
  1. 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;
  2. Any other fact or circumstance that the court thinks is relevant.

As practitioners and in accordance with our obligations under the Family Law Act 1975 (Cth), we encourage you to act on the basis that the child’s best interests are best met:

  • by the child having a meaningful relationship with both of the child’s parents; and
  • by the child being protected from psychological or physical harm and from being subjected to, or exposed to, abuse, neglect or family violence.

In applying these considerations, greater weight should be given by you to the need to protect the child from harm, abuse, neglect or family violence.