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Proposed Revision of Paragraph 60CC (3) (c ) designed to find fault in parents

The revision of 60CC (3) (c) would unfairly discriminate against parents who previously worked to support their family

So how would this new clause affect a parent in my situation: A separated father of a baby (where separation happened before birth)?

I take it you're referring the amendment of 60CC(3) - which is in effect the current 60CC(4)?

Not relevant in your case at all.

4MYDAUGHTER
vipashana said
.. but I wonder if someone can point out a little clearer why the substitute wording allows problems and how?

What bugs me about the substitute wording is that it PRESUMES that 'an opportunity existed' to do these parenting duties etc. when very often (in cases of PA) none exists… that parent is then left to prove that the opportunity wasn't there… which as I said shouldn't be too hard.  (doesn't this by default show there was 'no facilitating a relationship..')?  I think I'm repeating myself here…

I believe a benefit in the substitute wording would be to help it be pointed out in court when a parent is not taking on board fully the responsibility to care responsibly for the child during their custody/care and make regular efforts etc. … ie. little effort made in proper care.. but are fighting for custody (for ulterior motives)!
I believe you have answered your own question; especially if you test further the area of ..PRESUMES that 'an opportunity existed'.. It is this key point that is essential. IF there is no opportunity then how will you ever get to participate in ANY of the following:

    (i) to participate in making decisions about major long-term issues in relation to the child; and
    (ii) to spend time with the child; and
    (iii) to communicate with the child;

IF you cannot participate in any of the above because there was NEVER an OPPORTUNITY THEN it follows that you will not have ever fulfilled and you will have ALWAYS failed to fulfil the parents obligations to maintain the child. Look we cannot underestimate the effect of these few word changes. I am also unclear if there has been any intention to mean a financial contribution as obligations to maintain the child definitely extends to a financial contribution. If you look at the new definition of family violence around the financial provisions listed in:

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;

Then you can see where this has come from.

What intrigues me is this dire need of some anonymous drafters to change, what is an extraordinarily well crafted and powerful section of the existing Act. 60CC is one of the sections we spent many days on drafting with the previous AG advisors and legislation writers. Michael Green QC will attest also to the numerous meetings and months of discussions around 60CC within the various consulted groups.

The section (ca) the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child; is nothing at all like

(c ) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

How has it come to this?

Have the public servants lost the plot? What rational has come to light here? What has been the reason to change such well thought out , agreed to by both major political parties, and has been so very clear in its legal interpretation? You only have to read a few judgements in the Federal Magistrates court to see how 60CC is being dealt with and it is being dealt with extremly well. If it is being dealt with in a manner that was not intended or it was being misunderstood by the judiciary one could understand making changes. Currently I have not read anything that alerts me to the fact that there is any doubt about how 60CC (3) and (4) are to be dealt with in Family Courts hearings. There are some very clear sections and this is one of them.

Changes for changes sake are simply a complete nonsense and someone needs to explain to me in a sensible and eloquent way as to how these proposed new words in 60CC (3) will benefit any children at all. In my view it will have the opposite effect and we will see additional conflict, leading to AVO's once the sections permeate into the respective State legislation.
 
  60CC
    Primary considerations
    (2) The primary considerations are:
    (a) the benefit to the child of having a meaningful relationship with both of the childs parents; and
    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

s60CC (3) (c ) the existing section should be looked at more closely by these delinquent writers.

    Paragraph 60CC (3) (c )

    (c ) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

Is a fundamental and principal of the 2006 reforms that must be preserved, and certainly we will do our best..

Executive Secretary - Shared Parenting Council of Australia
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ds80 said
So how would this new clause affect a parent in my situation: A separated father of a baby (where separation happened before birth)?

The only opportunities I have had to exercise my parenting so far is an hour at a time, a couple of times a week.
I believe you have raised a key issue here. It will affect you by weighting the fact that you are a failed parent… If you have not had any opportunities then you have failed - Failed miserably was probably the term they wanted to insert but couldn't get that over the line. If you have failed to take, the opportunity:

    (i) to participate in making decisions about major long-term issues in relation to the child; and
    (ii) to spend time with the child; and
    (iii) to communicate with the child;
    (ca) the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;

Then why are you in court trying to get some time or extend that time to have a relationship with the children Sir. You didn't avail yourself of the opportunities given in the first place (Of course there were opprtunities given you just didn't take them… ) so it becomes extremly problematic as you try to argue that your role may have been that of the breadwinner, off to work and mum the stay home, family raising minder. That is how many families operate. It is an unwritten pact that paernts have in most families. That unwritten and non commercial agreement fact only comes unstuck when you separate. It is then turned against you as "you never participated in the childrens lives; you left early morning and came home late at night and you worked overtime on Saturdays.."

I am inclined to think the new provisions will actually make it more problematic for cases like yours. My colleague 4mydaughter, does not agree. I think if we look closer at what the words mean as a whole and the sort of "flavour" intended by teh new provisions it is a very diffent falvour to what we have now. ANY watering down of provisions that ensure the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; MUST be rejected and indeed will in teh scenario discussed in this post have a further detrimental affect.

If 4mydaughter looks at it in the reverse and asks the question "will the new 60CC (3) provisions water down, lessen, reduce or have any impacts lessening a parents ability to have interaction with the children as a result of not taking the opportunities; in the circumstances you have outlined? I would have to say yes they will. I can't easily see any other answer.

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
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@ Secretary SPCA thought your article on the front page of the forum was excellent.

I never really seen first hand the current section 60CC(4) play any significant/major role in determining the outcome of parenting matters. But just because I haven't seen it, does mean there hasn't been instances where it has.

In a parenting dispute where a father is having trouble spending time with a child because the mother is resistant, any reasonable person would concluded that there is very limited opportunity for a father to participate to any meaningful exist in the child's life. In such instances, the father can only do what he's able to do.

Where the substantive issue is 'relocation' the current section 60CC(4) (or proposed 60CC(3)) might play a more significant role. For example, if a parent wishes to relocate overseas - a move opposed by the other parent who hasn't fulfilled they're parenting obligations, hasn't taken opportunities or participated fully - that parent might struggle to successfully oppose a relocation application.

In respect of the proposed amendments, repeal of 'cost orders' and 'friendly parent' provisions are by far the most threatening.

At this stage I'm sensing that the Gillard government might not repeal these parts of the act. I sense they may be having second thoughts. They've got more than enough controversy to deal with at the moment.

Aside from QLD, they're now dealing with State Liberal Coalition governments who won't hesitate the lay blame on the Federal Government if the proposed amendments put state agencies under pressure - which they know doubt will.

If the 'cost orders' and 'friendly parent' provisions are repealed, state agencies are going to get slammed with 'family violence' reports - a higher proportion of them false.

Having said that, this doesn't seem to be a government that makes sensible decisions.

4MYDAUGHTER
Director SPCA said

The new provisions are:

    18 Paragraph 60CC(3)(c )
    Repeal the paragraph, substitute:
    (c ) the extent to which each of the childs parents has taken, or
    failed to take, the opportunity:
    (i) to participate in making decisions about major long-term issues in relation to the child; and
    (ii) to spend time with the child; and
    (iii) to communicate with the child;
    (ca) the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;


On face value, the proposed changes would appear fair and reasonable to anyone trying to attempt to do the right thing by their children. But family law, and the family court exists because one party is trying to do the wrong thing. And so any changes to the law needs to be viewed from a negative perspective. Ask yourself how can the proposed amendments be abused.

And these amendments can be abused. Remember the family law act does not invoke the Evidence Act and there is little transparency in family law proceedings. And so allegations that a parent has failed to take an opportunity, whether known or unknown, can be (and will be) used against the best interests of the children.

And so the proposed amendment does not pass my practicality test and should be voted "nay".


Aside, paragraph (ca) has some merit in an amended form. Provided the definition of "maintain" was codified to be more than child support payments, and included the physical and pyschological tasks of maintanence I would be okay.

Damn….why am I defending such a low level of performance as "maintain". Our kids deserve more than to have their lives "maintained". They need to be developed to be their absolute best. Preference should be given to the parent with greater merit = education, talent, values, motivation, passion, etc, etc, etc.

A person who can't pay gets another person who can't pay to guarantee that he can pay. Like a person with two wooden legs getting another person with two wooden legs to guarantee that he has got two natural legs. It don't make either of them able to do a walking-match. Charles Dickens
@PaulG

Remember the family law act does not invoke the Evidence Act and there is little transparency in family law proceedings.
Just so no one is mislead here.

Evidence in the Family Court and Federal Magistrates Court is subject to the terms of the Evidence Act 1995 (Cth) where the provisions of the Evidence Act do not conflict with the provisions of the Family Law Act.

Section 69ZT of the Family Law Act provides that in child-related proceedings provisions of the Evidence Act 1995 DO NOT APPLY unless court decides.

Section 69ZT of the Family Law Act provides that the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying. It also provides that the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in child related proceedings.

In deciding whether to apply one or more one or more of the provisions the court must take into account a number of factors:
  • the importance of the evidence in the proceedings
  • the nature of the subject matter of the proceedings
  • the probative value of the evidence
  • the powers of the court to adjourn the hearing, to make another order or give a direction in relation to the evidence

4MYDAUGHTER
4mydaughter,

Thanks for the enlightenment on how the court may approach evidence. My point is that where the provisions of an act allow a slight crack to appear, someone will drive a wedge through it. And the wedge driver is typically someone or a group who has plenty of time on their hands and a dogmatic agenda. And this is why any amendments to the Act needs to consider how the amendments can be abused. Because it will be abused.

Hence and how evidence appears to have very little weighting in the family court system.

PaulG

A person who can't pay gets another person who can't pay to guarantee that he can pay. Like a person with two wooden legs getting another person with two wooden legs to guarantee that he has got two natural legs. It don't make either of them able to do a walking-match. Charles Dickens
@PaulG

My personal belief is that evidence in the Family Court system is treated appropriately.

Next time you're around the NSW Supreme Court, pop into a criminal trial and see how evidence is treated there.

I sat in on the Simon Wood murder trial for a week and the evidence in that matter was given shocking treatment. The guy should never have been convicted of murder on the evidence that was presented.

4MYDAUGHTER
4mydaughter,

We'll have to agree to disagree. It is not my experience, nor the experience of some criminal and commercial lawyer friends who have expereinced the family law circuit.

Evidence is important in the 'hard' courts as the purpose of these courts is one of retribution, deterrence, incapacitiation, rehabilitation or restitution. Whereas the 'soft' courts purpose is to dampen down irrational parties or one irrational person.

A person who can't pay gets another person who can't pay to guarantee that he can pay. Like a person with two wooden legs getting another person with two wooden legs to guarantee that he has got two natural legs. It don't make either of them able to do a walking-match. Charles Dickens
@PaulG,

I'm likely making a generalisation that is not very helpful.

4MYDAUGHTER

Subsection BA located after subsection 60CC(2), 2(A)

Slightly off on a different line to the last few posts members will recall I was quoted earlier….

If we move on to Paragraph 60CC (3) (c ) which is a key section of the existing Act and a section we had much concern with in the exposure draft.

Existing Section 60CC at first glance, appears in the revised draft Bill to have been left intact; and relates to the "Friendly Parent" provisions  which is an area where we had fully supported in the existing Act.
60CC
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the childs parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
However it is s60CC (3) (c ) that is problematic and deserves scrutiny and revision to the existing section.
Paragraph 60CC (3) (c )

(c ) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Is a fundamental and principal of the 2006 reforms that must be preserved.

HOWEVER, when we look at the existing section above with the proposed new section we immediately start to see some problems.

The new provisions are:
18 Paragraph 60CC(3)(c )
Repeal the paragraph, substitute:
(c ) the extent to which each of the childs parents has taken, or
failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;
You have to be serious…

When I read this I thought the drafter that did this work must have had a really bad day. I am sure we will never find out which drafter it was!

"failed to take, the opportunity?"

A colleague, Yuri, also brings to attention Subsection BA located after subsection 60CC(2), 2(A) which states; If there is any inconsistency in applying the considerations set out in in subsection 2, the court is to give greater weight to the consideration set out in paragraph (2)(b).  2B is "The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence".

There is currently a view that this new provisions (2A) "demotes" the benefit to the child of having a meaningful relationship with both of the childs parents; to a slightly lesser weight of "The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence"

I think that in the main and from both written judgements and anecdotal evidence, most hearings see to be applying that weighting anyway. In other words even though we thought we had gained significant ground in the 2006 changes, by way of the Act raising up these TWO key provisions away from the other 60CC provisions (best interest) and that there was an expectation that they would be dealt with in an equal weighting , the fact in reality and for all practical implementations, is these have themselves been dealt with by a weighting toward the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Is (2C) a problem? My own view is that it is not a show stopper and it is a lessor problem than the new revised definition set out in Paragraph 60CC(3)(c ) which, by stealth; by a slick sleight of hand; a wink and an a nudge, removes a) the benefit to the child of having a meaningful relationship with both of the childs parents… We must absolutely hold ground on that one issue.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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