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Custody and Access: are children's interests being protected?

Published online by Cambridge University Press:  29 February 2016

J. Neville Turner
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Extract

All who work with broken families know that disputes as to custody and access of children are the most difficult of all cases to resolve and often create great bitterness. Yet the law relating to them is exceedingly simple. It can be expressed in nine words: “The welfare of the child is the paramount consideration.”

Despite its apparent simplicity though, the law and practices relating to custody and access are undergoing a great deal of heart-searching. If legal periodical literature of other countries is an accurate reflection of concern, it seems that very radical re-thinking is occurring abroad. Some of this is likely to rub off on this country. For, whether we like it or not, the world is getting smaller and the welfare of children is becoming more and more an international concern. The ratification by Australia of the UN Convention on the Rights of the Child is a timely reminder of this. The incidence of child abduction, kidnapping and inter-country marriages, and of course, inter-country adoption, surely testifies to the fact that we should now be looking at the care and well-being of children as a global issue.

Type
Custody and Access
Information
Children Australia , Volume 15 , supplement 4: The State of Australia's Children , 1990 , pp. 13 - 20
Copyright
Copyright © Cambridge University Press 1990

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References

References

1 Family Law Act 1975, s60D. (Hereafter the Family Law Act will be referred to as “F.LA.”).Google Scholar
2 Family Law Act 1975, s60D. (Hereafter the Family Law Act will be referred to as “F.LA.”).Google Scholar
3 See, eg Finlay, H.A., ““First” or “Paramount”, The Interests of the Child in Matrimonial Proceedings (1968) 42 Australian Law Journal 96.Google Scholar
4 Kress and Kress, (1976) F.L.C. 90–126.Google Scholar
5 Eg Schenck and Schenck (1981) FLC 91-023.Google Scholar
6 See In re L (Infants) [1962] 1 WLR 886.Google Scholar
7 (1981) FLC 91-023.Google Scholar
8 (1981) FLC 91-008.Google Scholar
9 See, eg Parents and Children After Divorce (Australian Institute of Family Studies).Google Scholar
10 G v G [1985] 1 FLR 894. See also Williams and Williams (1988) FLC 91-980.Google Scholar
11 Re R (1986) 16 Fam.L.R. 15.Google Scholar
12 FLA, s22(2).Google Scholar
13 Turner, J. Neville, Malaysia: Some Problems of Child and Family Law in a Progressive Pluralist Society, 13 Australian Child and Family Welfare 9 (1989).Google Scholar
15 See, e.g. Wood J in Edwards and Edwards [1986] 1 FLR 107.Google Scholar
16 See Stiffle and Stiffle (1988) FLC 91-977. But this is not an absolute rule. For an interesting case where the children were split, see Wellington and Wellington (1977) FLC 90–277.Google Scholar
17 F and N (1987) FLC 91-813. See also Power and Power (1988) FLC 91–911.Google Scholar
18 Cilento and Cilento (1980) FLC 90–847.Google Scholar
19 Cilento and Cilento (1980) FLC 90–847.Google Scholar
20 For a criticism of the Magistrates Court as a forum for Family Law cases, see Turner, J. Neville, Family Law and Magistrates, 4 Legal Service Bulletin 88 (1979).Google Scholar
21 Gronow v Gronow (1979) 144 CLR 513.Google Scholar
22 But they are not determinative. See eg G v G (1988) FLC 91-939, where a lesbian mother was awarded custody of three children (aged 11, 10 and 6) in preference to sexually abused them. Ellis J in that case said that the children's wishes were of no significant weight. See also Keaton and Keaton (1986) FLC 91-745.Google Scholar
23 FLA, s64(1)(b).Google Scholar
24 (1973) 47 ALJR 499.Google Scholar
25 (1979) FLC 90-633.Google Scholar
26 H v H [1974] 1 All ER 145Google Scholar
27 The expertise of the welfare officer may properly be the subject of cross-examination: B.B.T. and I.M.T. (1980) FLC 90-809.Google Scholar
28 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 1 All ER 533. In this important House of Lords case, it was held that a minor's capacity to make decisions was dependent on his or her individual maturity. See M v M (1987) 17 Fam. Law 237. For an excellent commentary on Gillick's case, see P.N. Parkinson 16 Family Law 11.Google Scholar
29 Joannous and Joannous (1985) FLC 90-144.CrossRefGoogle Scholar
30 (1976) FLC 90-025.Google Scholar
31 (1981) FLC 91-077.Google Scholar
32 (1978) FLC 91-404.Google Scholar
33 See J v C [1970] AC 668, where, however, it was emphasized that the quality of parenthood was all-important.Google Scholar
34 (1984) FLC 91-531.Google Scholar
35 See, e.g., Priest v Priest (1963) 9 FLR 384.Google Scholar
36 FLA, s64(1)(bb).Google Scholar
37 FLA, ss14(1), 61B.Google Scholar
38 The writer is joint author of a recent book which emphasizes the inter-disciplinary nature of Family Law: Charlesworth, S., Turner, J. Neville and Foreman, L., Lawyers, Social Workers and Families (Federation Press, 1990).Google Scholar
39 Watson ex parete Armstrong (1976) FLC 90-059.Google Scholar
40 Lythow and Lythow (1976) FLC 90-007.Google Scholar
41 See Plows and Plows (No.2) (1979) 40 FLR 339. For two contrasting views on the virtue of religion, see Goodman, E., The Relevance of Religion in Custody Adjudication under the Family Law Act, 7 Monash U.LR. 217 (1981) and F. Bates, Child Law and Religious Extremists: Some Recent Developments, 10 Ottawa Law R. 299 (1978).Google Scholar
41 Firth and Firth (1988) FLC 91-971.Google Scholar
42 Free Press, New York, new edition, 1980.Google Scholar
43 Burrett, Jill F., Child Access and Modern Family Law, Law Book Co Ltd, 1988.Google Scholar
44 Access, Report of the Family Law Council (1988).Google Scholar
45 Mazur and Mazur (1976) 27 FLR 102.Google Scholar
46 (1983) 4 FLR 135.Google Scholar
47 D'Agostino and D'Agostino (1976) FLC 90-130, per McCall J.Google Scholar
48 Cotton and Cotton (1983) FLC 91-330, per Nygh J.Google Scholar
49 Stavros and Stavros (1984) FLC 91-562.Google Scholar
50 Keaton and Keaton (1986) FLC 91-745.Google Scholar
52 Eg. L.A.B. and C.J.B. (1984) FLC 91-591.Google Scholar
53 Hughes and Hughes (1980) FLC 90-869.Google Scholar
54 See B and B (1988) FLC 91-978; M and M (1988) FLC 91-929.Google Scholar
55 Litchfield and Litchfield (1987) D.F.C. 95-049.Google Scholar
56 See Brennan and Smith (1987) D.F.C. 95-049.Google Scholar
57 FLA, s64(2)(c).Google Scholar
58 FLA, s64(5).Google Scholar
59 See Charlesworth, S., Turner, J. Neville and Foreman, L., op. cit., Chapter 4.Google Scholar
60 FLA, s60H.Google Scholar
61 See Turner, J. Neville, A Campaign to Reduce Ex-nuptial Births? 12 Australian Child and Family Welfare 12 (1987).Google Scholar
62 See above.Google Scholar
63 For the jurisdiction of Children's Courts over neglected children, see S. Charlesworth, J. Neville Turner and L. Foreman, op. cit., Chapter 6.Google Scholar
64 See Raby and Raby (1976) FLC 90-104.Google Scholar
65 (1984) FLC 91-533.Google Scholar
66 FLA, s64(1)(ba).Google Scholar
67 Law Commission, Review of Child Law, Guardianship and Custody (Report No. 172, 1988).Google Scholar
68 Report of the Inquiry into Child Abuse in Cleveland 1987, Grand. 412 (1988).Google Scholar
69 For an excellent compendium of papers on the objects of this Act, see Volume 19, June part, of the journal, Family Law (1989).Google Scholar
70 FLA, s63E.Google Scholar
71 See, e.g. Putrino and Jackson (1978) FLC 90-441, Chapman and Palmer (1978) FLC 90-510 and the recent case, Skrabl and Leach (1989) FLC 92-016.Google Scholar
72 See above, fn. 28.Google Scholar
73 In re a Teenager (1989) FLC 92-006, In re Jane (1980) FLC 92-007. Contrast In re Elizabeth (1989) FLC 92-023.Google Scholar
74 FLA, S63(1)Google Scholar
75 One such excellent organization is the Children's Interest Bureau of South Australia.Google Scholar
76 See Plows and Plows (1979) FLC 90-712.Google Scholar
77 Cf. Murphy J, in Vitzdamn-Jones and Vitzdamn-Jones (1981) FLC 91-012.Google Scholar
78 See J. Wallerstein and I. Kelly. The longitudinal research of these two scholars has resulted in many further publications.Google Scholar
79 See A. Mitchell, Children's experiences of divorce, 18 Fam. Law 460 (Dec. 1988). See also Y. Wzatlezak and S Bums, Divorce, the child's point of view (Harper and Row, 1984).Google Scholar
80 FLA, s55A.Google Scholar
81 M. Haynes, State intervention in divorce, 18 Family Law 174 (1988).Google Scholar
82 It has been held welfare reports are compulsory unless impracticable. Greenfield and Parson (1984) FLC 91-504.Google Scholar
83 Adoption Act 1984 (Vic), S106.Google Scholar
84 FLA, s65.Google Scholar
85 These are set out in Bates, F. and Turner, J. Neville, The Family Law Casebook (Law Book Co. Ltd., 1985) at pages 296–299.Google Scholar
86 See F and F (1989) FLC 91-031.Google Scholar
87 See above.Google Scholar