Category Archives: Children

G v H [1994] HCA 48 | 19 October 1994

G v H [1994] HCA 48; (1994) 181 CLR 387; (1994) 124 ALR 353 (19 October 1994).

http://www.austlii.edu.au/au/cases/cth/high_ct/181clr387.html

A child’s paternity had been inferred by the Full Court of the Federal Court of Australia by reason of matters including the father’s refusal to undergo a paternity test.

On appeal to the High Court, it was argued that the adverse inference was not just in the light of the evidentiary rule set out in Briginshaw v Briginshaw (that for issues of importance and gravity arising in a civil case, serious consideration be given as to whether the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist).

The High Court held that whilst paternity is a serious matter, it was just to draw the adverse inference against the putative father because the paternity test was capable of conclusively determining the child’s paternity and that the child’s right to maintenance and support should not depend on establishing paternity in accordance with the Briginshaw test.

Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided … Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. …

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U v U [2002] HCA 36 | 5 September 2002

ON 5 SEPTEMBER 2005, the High Court of Australia delivered U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002).

http://www.austlii.edu.au/au/cases/cth/high_ct/2002/36.html

An Indian mother and residential parent of a 9 year old girl applied to relocate to Mumbai where she had good employment prospects and family.

The Family Court rejected the application and appeals were dismissed by the Full Court of the Family Court of Australia and High Court of Australia.

The High Court made the following observations about relocation cases:

  • The court, not the parties, defines the issues. The parties do not define the issues because they have failed to agree to a parenting plan. The court is not bound by the polarised options of the parties but instead must decide what is in the child’s best interests.
  • There is no onus of the parent seeking relocation to show compelling reasons for relocation.
  • Relocation disputes are unlikely to produce perfect solutions because of the wide range of predictions and discretion to make findings.
  • It should be assumed that the non-resident parent ought not relocate to be nearer the relocating resident and child; and it should not be assumed that the residential parent should not subordinate her wish to relocate to the wish of the non-resident parent to remain in the place of his or her choosing.
  • It is self-evident that, except in cases of abusive relationships, it is in the child’s best interests to develop good relationships with both parents.

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Sydney, Australia

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Advocate for Children and Young People Act 2014 (NSW)

ON 24 JUNE 2014, the NSW Parliament enacted the Advocate for Children and Young People Act 2014 (NSW).

The Act is described as: “An Act to create the office of Advocate for Children and Young People and to provide for the functions of that office; to repeal the Commission for Children and Young People Act 1998 and the Youth Advisory Council Act 1989; and for other purposes.”

The Act is to commence on a day or days to be proclaimed.

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U v U [2002] HCA 36

ON 5 SEPTEMBER 2005, the High Court of Australia delivered U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002).

http://www.austlii.edu.au/au/cases/cth/high_ct/2002/36.html

An Indian mother and residential parent of a 9 year old girl applied to relocate to Mumbai where she had good employment prospects and family.

The Family Court rejected the application and appeals were dismissed by the Full Court of the Family Court of Australia and High Court of Australia.

The High Court made the following observations about relocation cases:

  • The court, not the parties, defines the issues. The parties do not define the issues because they have failed to agree to a parenting plan. The court is not bound by the polarised options of the parties but instead must decide what is in the child’s best interests.
  • There is no onus of the parent seeking relocation to show compelling reasons for relocation.
  • Relocation disputes are unlikely to produce perfect solutions because of the wide range of predictions and discretion to make findings.
  • It should be assumed that the non-resident parent ought not relocate to be nearer the relocating resident and child; and it should not be assumed that the residential parent should not subordinate her wish to relocate to the wish of the non-resident parent to remain in the place of his or her choosing.
  • It is self-evident that, except in cases of abusive relationships, it is in the child’s best interests to develop good relationships with both parents.

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Sydney, Australia

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Keltie & Keltie & Bradford [2002] FamCA 421

Keltie & Keltie & Bradford [2002] FamCA 421 (21 June 2002).

http://www.austlii.edu.au/au/cases/cth/family_ct/2002/421.html

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Sydney, Australia

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DP v Commonwealth Central Authority [2001] HCA 39

DP v Cth Central Authority [2001] HCA 39; 206 CLR 401; 75 ALJR 1257; [2001] FLC 93_081 (27 June 2001).

http://www.austlii.edu.au/au/cases/cth/high_ct/2001/39.html

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Sydney, Australia

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A & A: Relocation Approach [2000] FamCA 751

A & A: Relocation Approach [2000] FamCA 751 (1 August 2000).

http://www.austlii.edu.au/au/cases/cth/family_ct/2000/751.html

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Sydney, Australia

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